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Part Ii

Volume 591: debated on Monday 22 June 1998

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Other Enactments")

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.

Moved, That the House do agree with the Commons in their Amendment No. 12.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

National Minimum Wage Bill

4.45 p.m.

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Tordoff) in the Chair.]

Clause 41 [ Power to apply Act to individuals who are not otherwise "workers"]:

Page 25, line 37, at beginning insert ("After a process of consultation with persons representative of industry and small business,").

The noble Baroness said: In moving Amendment No. 116, I should like to speak also to Amendment No. 117 and, in doing so, to ask the Committee: why is a self-employed person like an elephant? Because they are both impossible to describe, but you can certainly recognise one when you see it.

Let us consider a few examples. A taxi driver who owns his taxi is clearly self-employed, but a non-owner-driver who uses the same radio service, which also handles his credit bookings, and who works on some sort of commission arrangement with the vehicle owner, may very well either be self-employed or not. A jockey, even one exclusively contracted to an owner or a trainer for a season, is probably self-employed.

If a man qualifies as a solicitor, sets up in practice and acquires some partners, he is clearly self-employed. If, after some years, he decides to spend more time with his golf clubs and goes into semi-retirement, becoming a consultant in the firm that he founded, dealing with just a few special clients and continuing to provide expertise in his specialty, he ceases at a stroke to be self-employed and becomes an employee, despite the fact that he is working in the same office, sitting at the same desk and doing the same job.

Under paragraph (a) of Clause 41, which is covered by Amendment No. 116, the Secretary of State seeks to apply the provisions of this Act to

"any individual … who would not otherwise he a worker".

That is a pretty sweeping power. I repeat that the clause refers to "any individual". The Secretary of State does not even offer to exercise that power reasonably—if I may remind the Committee of earlier discussions on other aspects of the Bill. The Bill does not give the slightest clue as to the criteria which the Secretary of State will apply when deciding whether to invoke this very wide power—yet it is a power that may very well turn the entire concept of self-employment on its head or make a mockery of the English language.

Before the Secretary of State makes regulations which, at a stroke of her pen, turn my window cleaner into my employee, we believe that she must submit to some very minor restrictions. That is precisely what Amendment No. 116 seeks to achieve. Instead of merely acting on her own preconceptions, misconceptions or, indeed, a mere whim, we ask the Secretary of State to consult employers' representatives. The Government have repeatedly told us during this stage of the Bill that the Minister will consult widely before making any regulations. This clause as drawn does not oblige her to do so. All that Amendment No. 116 seeks is that she should be obliged to do so.

I turn to Amendment No. 117. In the Notes on Clauses the DTI informs the Committee that the object of this clause is

"to prevent avoidance of the national minimum wage".

Once again, as when this aspect has been raised in other parts of the Bill, we entirely support that objective. However, I am puzzled that in drafting this and other provisions of the Bill the left hand (the DTI) does not seem to know what the right hand (the Treasury, in the form of the Inland Revenue) is doing and has been doing successfully and efficiently over generations. Does the DTI consult the Treasury? Does the DTI even speak to the Treasury? Does the Secretary of State speak to the Chancellor of the Exchequer? According to recent reports in the press, that is a wholly different question. It is as if the DTI has arrived from another planet unaware of the existing facilities and tried and tested definitions that cover matters which this Bill attempts to address.

In Clause 2(4) the Secretary of State seeks power to define by regulations remuneration, benefits in kind and allowable deductions from pay and to change those definitions when she decides to do so. That power is sought despite the fact that the Inland Revenue has an adequate set of rules and volumes of case law to deal with all of those. I argued that point in relation to Amendments Nos. 19 and 22. I then suggested that anything that was taxable should be regarded as wages for the purposes of this Bill. The Minister rejected my argument on grounds that I found far from convincing. He said that the regimes for income tax and the national minimum wage were different. I do not agree. If they are different it is only because the Government choose to say so.

In the present clause the Secretary of State wants to rush in and define "self-employed". Bearing in mind the allegorical elephant that I mentioned in my opening remarks, frankly, that will not do. The Inland Revenue has a perfectly adequate definition and a comprehensive series of tests to decide whether or not a person is self-employed. Those regulations and tests are designed specifically to prevent tax avoidance by a person who pretends to be self-employed when he is not. That is exactly the objective of this clause. We cannot have two parallel systems so that a person who is self-employed for taxation purposes is arbitrarily expelled from that status by a contradictory order of the Minister. The fact that such an order will need to be debated is of no real help given the Government's steamroller of a majority in another place.

We also cannot have a state of affairs in which the Inland Revenue is able to decide in its own interests to rule that a person who is not recognised as self-employed by the DTI is not such for taxation purposes. Is it possible to envisage the Treasury giving up ally of its power and authority? Indeed it is, in just two words: interest rates.

I read with interest the debate in Committee in the other place. I searched hard to find an explanation of the DTI declining to accept a ready made, tried and tested definition. The Minister for Small Businesses found the following unconvincing reasons on 3rd February at col. 749. First, she said that the Government wanted

"to cover any loopholes which unscrupulous employers may find and exploit".

We certainly support that. But it is difficult to understand how setting up a new definition and structure that will undoubtedly have to be tested in the courts item by item will help to avoid loopholes, especially in the short term. The Minister also said:

"The Inland Revenue has no strict definition of self-employment, but it does use certain criteria. As a result, cases are decided individually".

Fancy that, my Lords! To pay attention to the individual circumstances of each case rather than try to cram them into a rigid, inapplicable and inappropriate category is what a reasonably judicial, or quasi-judicial, system demands. The "certain criteria" that the Inland Revenue use are those that we want the DTI to use in the interests of consistency.

I revert to my window cleaner. Suppose that he falls off a ladder outside my house. I say that he is self-employed and the Inland Revenue backs me up. The Secretary of State can make him my employee and possibly make me subject to a greater liability, including criminal prosecution, because of the definition that she chooses to impose. I do not know what the Government are frightened of. In the short Clause 41 they take powers to include within the definition of the Bill persons who are not workers. All we ask is that the exercise of these powers does not override a person's established status as a self-employed person.

We do not propose to inhibit the power of the Secretary of State to close loopholes and therefore we support the principles of this clause. But we want the Government to be able to construct effective anti-avoidance devices without having to return to Parliament for fresh primary legislation. We must not allow a judgment to be made by the Secretary of State or her advisers who, with no disrespect, may have no great practical experience of the real world of self-employment and may hastily overreact to an emerging problem or make a decision that is inconsistent with a person's tax status.

To sum up, Amendment No. 116 simply obliges the Secretary of State to consult the representatives of industry, particularly small businesses for they are the ones who are likely to be most affected, before she makes a decision. We want the Secretary of State to be sure of the facts and the consequences before she makes her decision. She will still be entitled to make up her mind based on her own opinion having given due consideration to the advice that she receives, unless that decision proves to be wholly irrational. Amendment No. 116 does not inhibit the powers of the Secretary of State but simply requires her to pause to consider the matter before acting. I am sure that there can be no objection to that. All that we ask in Amendment No. 117 is that logic, consistency and continuity with the Inland Revenue's tried and tested rules are applied. I beg to move.

5 p.m.

I apologise to the noble Baroness for missing the first few moments of her contribution this afternoon. I have been informed of her remarks by my noble friends on the Front Bench.

The noble Baroness asked a number of very pertinent questions. Does the DTI consult the Treasury? Yes. Do we speak to each other? Yes, quite a lot. Does the DTI come from another planet? I believe that the noble Baroness is a little confused and is perhaps referring to the shadow Secretary of State. It certainly does not, and that is widely recognised.

Clause 41 represents a very important part of this Bill. Its purpose is to provide the Secretary of State with a measure of flexibility. We want to be able to close any loopholes that may be opened at a future time by some employers who wish to dodge their responsibilities. We also want to be able to adjust the coverage of the Bill as necessary to deal with changing labour market practices and working arrangements. We have drafted the Bill sufficiently tightly to cover all of those who as far as we can tell should be covered at this stage. But who knows? In the light of experience, we might find it necessary to extend the Bill further. Some employers may go to great lengths to avoid their responsibilities. I hope that that is not the case. We are convinced that most employers will want to do the opposite; they will want to comply with the legislation. I put forward the reason for that to the Committee on the previous occasion. They do not want to establish bad practices in this regard. It is important that we have a level playing field and that the cowboys do not succeed.

Amendment No. 116 would require the Secretary of State to consult representatives of industry and small business before extending the Bill to further descriptions of individuals. I believe in consultation. I urged it on many occasions when I was sitting on the Benches opposite. It is right that the Opposition should probe the Government's intentions. I hope that that is what they are seeking to do.

Long before the election, and since, we have engaged in wide consultation. We did it with regard to the minimum wage policy. One of the reasons for setting up the Low Pay Commission was to ensure that we maximised the possibilities for consultation. My colleague, the Minister of State in another place, has confirmed that we will consult on the regulations under the Bill. I have said it many times in this place. It is normal and proper to consult. That is what I was told frequently by Ministers when I sat on that side of the Chamber. They said that it was not necessary to have such requirements within the framework of a Bill itself.

My problem with the amendment is that it would be over-prescriptive to require consultation to be established on the face of the Bill. The Secretary of State would of course consult before extending the Bill by using the power in the clause. Consultation will take place in normal circumstances, but there may be circumstances where consultation could make action less effective.

One of the aims of Clause 41, as I said, is to ensure that the Secretary of State can close any loopholes that might emerge. One cannot rule out the possibility that some employers, and some of their advisers, might find a loophole and seek to frustrate the legislature's intention. That might include reclassifying their entire workforce or revising all their working arrangements. If that were to happen, we would want to act rapidly to ensure that the workers concerned were not deprived of their rights. That might preclude consultation before action were taken.

There would not be much purpose in engaging in consultation in those circumstances, which may be extreme. Who knows? The amendment would also require the Secretary of State to consult one part of the social partnership only. That is not desirable. The point of consultation is to achieve an all-round perspective. We know that the previous government eschewed that possibility. They did not like consulting the social partners as a whole. Theirs was a one-sided operation. That is not my idea of consultation. I am not in the business of turning a deaf ear to important parties in consultations of this kind. We want to work together. It is a dynamic process. Both sides of industry and the Low Pay Commission provide a good example of what can be achieved by that process. The amendment is unnecessary and potentially harmful. I hope that the noble Baroness will not press it.

I turn now to Amendment No. 117. I repeat the point about covering any loopholes which unscrupulous employers might try to exploit. Self-employment is a potential area of concern. It is one of great complexity, as the noble Baroness recognised. In most cases there is no problem in distinguishing the self-employed from employees and workers, but there is a degree of uncertainty at the margins. The noble Baroness is worried about how we shall draw the distinction in such cases. The amendment seeks to tie the Bill to the definition of "self-employment" used in tax law.

There is no necessary correlation between the two. It would not be right to tie ourselves on the face of the Bill to criteria which are used in tax law as distinct from employment law. There are distinctions to be drawn. We are following an approach used in the Employment Rights Protection Act 1996 by the government of the noble Baroness. If it was right to do it then, why should we not do it in these circumstances? The noble Baroness did not seek to address that point.

In another place the Opposition pressed hard on the issue. Mr. Green, a Conservative Member, when a similar amendment was being discussed in Committee—I cannot quote him verbatim because I am not allowed to—in effect said that people who were self-employed in the assessment of one branch of government should not be regarded as employees in another. The noble Baroness must address the point raised by her honourable friend in another place. Self-employment for tax reasons is based on a number of tests designed to establish status on a case-by-case basis. In most cases it is clear whether someone is or is not self-employed for tax and minimum wage purposes. I concede that. There will be cases where the issue becomes questionable. It is not sensible to tie employment law to criteria drawn up for tax purposes where there is, in any case, no certainty.

The arguments adduced by the noble Baroness's honourable friend in another place, which I adopt, represent important answers to the case which the noble Baroness has put persuasively, but it would be wrong to take her advice. I hope that she will withdraw the amendment. If not, she will seek the opinion of the Committee, and we shall do whatever we can to reject it.

I listened to the persuasive arguments on both sides, especially with regard to Amendment No. 116. If the Secretary of State will consult, why does not the Minister consider it wise to put it on the face of the Bill? The Minister described a hypothetical situation. He said that it would be crazy to consult the employers because they would be the people avoiding the payment of the minimum wage. The amendment does not refer to the employers. The amendment provides:

"After a process of consultation with persons representative of industry and small business".
I agree with the Minister that if someone is openly flaunting the application of this law, one would want a process whereby one could stop that immediately and not consult. That is not what is stated in the amendment.

We hope that when the Bill becomes an Act it will last for a number of years. Events move on and none of us can forecast the different situations which will pertain in six months' or six years' time. In order to keep abreast of events and the changing pattern of process in industry and business, it would help the Secretary of State to have the power of consultation written on the face of the Bill.

I am ignorant as to whether the Low Pay Commission has an ongoing role which would enable the Secretary of State to consult with the commission in three or four years' time. I suspect that it has not. If it had such a role, that might be an answer. I believe that there is a risk—it may not be huge—and that in some situations it might be better if the Secretary of State were involved in the consultation process. I hope that I have made the point clearly. I would not go to the stake on it, but I believe that there is merit in putting the provision on the face of the Bill.

There is a misunderstanding about the way in which we have consulted through the Low Pay Commission. As I said when we were last in Committee, the Low Pay Commission is not drawn from representatives of industry and small business. It ensures that people of sufficient expertise in the various fields to be covered can join together in offering expertise to the work of the commission. That is very different. So the amendment is fatally flawed.

The significance of what the noble Baroness says is recognised by the Government. We say that we have already consulted widely. In the overwhelming majority of cases we would do so. But I have drawn attention to an urgent situation where the Government have to take immediate action and would not have the opportunity to consult with the Low Pay Commission, or anyone else.

I made a Statement in the House on the national minimum wage recently. I was bombarded with a large number of questions from the noble Baroness, Lady Miller, which I did not have time to answer. But we said then that the Government will be using the Low Pay Commission in order to engage in the development of proposals for, and to take forward work on, monitoring and evaluating the introduction of the national minimum wage over the next year. Clause 6 of the Bill enables the Secretary of State to refer matters to the Low Pay Commission at any future time.

I thank the Minister for giving way. I am not worried about the first year. I am worried about years three, four, five, six and onwards. I believe that there will be an automatic reaction: everyone will want to behave perfectly properly under the terms of the Act. I am worried about the situation beyond the euphoria which will attach to the first 12 months' operation of the Act.

I am delighted to hear that there will be a state of euphoria after we have enacted the Bill. That is in marked contrast to the position adopted by the noble Baroness, Lady Miller. I am euphoric now even thinking about it!

The principle applies equally to a situation now or three or five years ahead. It would be unnecessarily inflexible and too rigid for the Government to tie themselves in all circumstances to the consultation that the noble Baroness wants as a matter of legislative requirement.

5.15 p.m.

I thank the Minister for what he said. He may not be surprised to hear that I am disappointed. The point I sought to make was that Clause 41 provides the power to apply the Act to individuals who are not otherwise "workers". Clause 41(a) refers to "any individual". We sought in the amendment to ensure that the genuinely self-employed worker would not fall into that category. Amendment No. 117 deals with exactly the same point. I was not asking the Minister for a long, detailed explanation. The Secretary of State is taking sweeping powers upon herself in extending the definition of "worker". I referred to the allegorical riddle: why is a self-employed person like an elephant? The Minister was not then present. The answer is that we know what we are talking about, but it is difficult to recognise.

In discussing Clause 2(4), I sought to make the point that I have put again in Amendment No. 117 on the different regimes for income tax. The Minister commented on the numerous questions I asked when he made a Statement. I accept that this is a convenient time to mention it. I accept that the Minister could not answer all those questions. However, I hope that he and his officials will ensure that I receive written replies.

The Minister asks me not to press the amendment. I did something which I understand politicians do not do—perhaps I am not a politician. I made clear to the noble Lord, Lord Haskel, that we had no intention of dividing on any of the amendments. First, I understand from the Labour Chief Whip that there is the tug-of-war this evening; and, secondly, many noble Lords will wish to watch England play Romania. Therefore because I am a reasonable Opposition spokesman, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 117 not moved.]

Clause 41 agreed to.

Clauses 42 to 44 agreed to.

After Clause 44, insert the following new clause—

FAMILY BUSINESSES

(". A person who is employed by his spouse, parent or child, or by a private limited company of which his spouse, parent or child is a substantial (but not necessarily a controlling) shareholder, does not qualify for the national minimum wage in respect of that employment").

The noble Baroness said: Although Amendment No. 118 is not grouped with Amendment No. 119, I indicated to the noble Lord, Lord Haskel, that I would speak to the amendments together.

Clause 44 recognises the need to exempt voluntary workers and hence the organisations for which they work from the requirements of the national minimum wage. That is entirely right and proper. I declare an interest as chairman of the National Association of Leagues of Hospital Friends, an organisation which would collapse if we were required to pay our volunteers for the invaluable service that they freely give. However, there are two other categories of employees whom it is essential to exempt from the operation of the Bill. The first, referred to in Amendment No. 118, is spouses, parents and children of the owners of a business.

I used the word "owners" because some small businesses, even the corner grocery shop or newsagent, may be incorporated as a limited company. A limited company was once described as having no soul to damn and no body to kick. Neither does it have a spouse, parent or child. We are talking about the family business where sometimes, or frequently, the spouse, child or parent of the owner comes in to help at a particularly busy period, at a time of staff shortage, or even as a regular means of keeping overheads down and avoiding the need for extra paid staff. The family concerned derives its living from the business, so whether a wage is paid to the spouse, parent or child is the concern of the family and no one else. The Government have no business involving themselves in people's ordinary domestic affairs.

Are the Government really saying that if a shopkeeper's spouse comes in to help out on a Saturday afternoon or during the Christmas period some wretched greengrocer will be liable to be served with an enforcement notice under Clause 19, sued by an official under Clause 20, suffer a penalty notice under Clause 21 and, last by no means least, be prosecuted under the criminal law and be fined at the maximum rate normally reserved for the most heinous offences under Clause 31?

During the passage of the Bill, I was approached by a smallholder who told me that he had a farm shop on his land. His 70 year-old mother ran it purely to give herself something to do. She wanted no wages from her son. He said that if he were forced to pay her he would have to close his shop, damaging his business, and his mother would have to stay at home all day. Rendering a parent liable for not paying a child the minimum wage when the child is assisting in the family business would be as ludicrous as complaining that the child was not being paid for mowing the lawn or washing the car.

Does not the noble Baroness realise that that would not apply because children of the age she is contemplating are not within the provisions of the Bill?

I thank the noble Lord for his interruption, but I do not accept what he says. There are plenty of teenagers of 18 or 19 who help their parents in a local shop on a Saturday and who would be covered by the Bill. I use the word "child" in the relationship of parent and child. I am well aware of the age because I have studied the Bill thoroughly, as I am sure the Minister knows.

We cannot rely on the possibility that the officials who are to enforce the provisions of the Bill will do so with discretion and in a reasonable manner. I regret to say that experience shows us that that is not something we can rely on. The over-enthusiastic enforcement of EC directives is a case in point. In any event, why should we have to depend on the good will of some official or risk inconsistent treatment in different parts of the country? The amendment is a common sense provision which neither damages the Bill nor the general principle of a national minimum wage.

I turn to Amendment No. 119 in respect of which I believe exactly the same principles apply. The vast majority of limited companies are family owned. Even when the directors are unrelated they are, in essence, business partners trading under what is called "the corporate veil." Such companies are often described as quasi partnerships and the directors of most companies of that kind are usually the only or the main shareholder. Once again, it is not for the Government to interfere in private arrangements freely entered into by directors and shareholders who enjoy equal bargaining power.

In connection with Amendment No. 2, the Minister claimed—indeed, he insisted—that a partnership was the same as an individual employer and not X number of separate employers, a topic to which I shall return in a later amendment to Clause 54. Before we get into another legal argument, perhaps I may draw his attention to the recent case of the Secretary of State for Trade and Industry v. Bottrill. That case involved the Minister's own department, so I am sure that he is perfectly familiar with it. The ruling was that a person who was the managing director and the holder of the sole issue share in a company was nevertheless an employee.

Perhaps I may give the Committee two examples from my own experience of the anomalies which can arise unless directors are exempt. I began my own business early in 1972 with a partner. In order to help it through its first two shaky years, we drew no salary until 1974. I was fortunate in having other sources of income, but my partner, my co-director, did not. He survived by using other assets and bank and other loans. It would have been wrong to force us to increase the company's overdraft or imperil our ability to meet our bills immediately they fell due by making us take an unwanted salary, however small—or, in our case, considering the number of hours we worked, quite substantial—and having to pay tax and national insurance on unwanted income, too.

In giving my second example, I must again declare an interest in some small family investment companies of which I am a director. We do not pay directors' salaries simply because we prefer to pay all surplus income as dividends to our shareholders who are our family members. Once again, the purpose of the amendment is to avoid an anomalous situation where the state would be interfering in private internal arrangements which are none of its concern. In both cases, why should the Government exclude members of the Armed Forces and prisoners from the operation of the Bill simply because the Treasury would have to foot the bill and not exclude the owners of private businesses in relation to what they pay themselves and their immediate family out of their own pockets? I do not suggest that either of the two omissions—family members and directors—from the exclusions contained in Clauses 43, 44 and 45 is caused by any desire to over-regulate or to indulge in "nannyism". I believe that there are incongruities caused by a drafting oversight arising from the Government's desire to achieve universality. I trust that the Government will accept that there is no breach of the principles of the national minimum wage which they are pursuing by the legislation if they accede to the moderate exclusions we are seeking. I beg to move.

I am happy to support the noble Baroness's amendments. They are common sense amendments and, I imagine, would be regarded as such by the great majority of people. Can the Minister tell us what is the position of those aged, say, 18 or 19 who work part-time for their parents in return for board and lodging and perhaps other benefits in kind, with no money changing hands? Presumably there would be no contract of employment in such a case. Are they excluded from the provisions of the Bill as it stands?

Perhaps I may ask a supplementary question in relation to Amendment No. 119 which raises some interesting issues. It relates to companies limited by guarantee. I have served as a director of a number of such companies, usually associated with charities, or quasi-charity or voluntary organisations. A considerable amount of work is carried out by the directors of such companies and no remuneration is expected. In those circumstances and under the proposed legislation, would it be appropriate for those directors to remain unremunerated?

5.30 p.m.

I thank the noble Baroness, the noble Lord, Lord Monson, and the noble Viscount, Lord Thurso, for the interesting points which they raised. I shall do my best to reply. Before I do so, I should say that I appreciate the indulgence of the noble Baroness as regards the tug-of-war because it is being held for a very worthwhile charity—the Macmillan Nurses. It is a bit late to invite other people. However, it is an important charity and Members of both Houses have before played a significant role in helping it. Secondly, I know that the noble Baroness wants to watch the football, so her remarks were rather self-serving.

Before I deal with the specific points raised by the noble Baroness and other noble Lords, I should say, again, that Amendment No. 118 deals with exclusions. This time it excludes family members from entitlement to the minimum wage.

In another place, there was a lot of discussion about the employment of spouses. Amendment No. 118 goes rather further than that because in effect it seeks to exclude anyone employed by spouse, parent or child or by a business in which the spouse, parent or child is a substantial shareholder. The noble Lord, Lord Monson, said that that is quite reasonable and will be accepted by the wide majority of the public. I am not sure how he measures that but that is a matter for him to answer. I am not in the business of trying to go about excluding as many people as possible from the operation of this Bill. But that is what the Opposition are about. What is being proposed here would go against the whole principle of the Bill.

Amendment No. 118, which was revised something like two weeks after it was first tabled, seems also to indicate a desire to over-complicate. I do not wish to become involved in a debate about the nature of shareholding control and whether a person is a substantial or controlling shareholder. Here we are talking about a Bill which is designed to deal with workers. It is founded on the basis of whether or not a person is a worker. The status of shareholders has nothing whatever to do with it.

It is a very simple principle even though the Opposition seem to be in the business of making the matter as complicated as humanly possible. A worker should be entitled to a minimum wage whoever he has as his employer. I see no reason why a person should be disenfranchised from the procedure which we are seeking to invoke for the first time just because the employer is his spouse, father or child. We are dealing with extremes all the time in this regard. An employer may quickly marry his employee in order not to pay the national minimum wage.

I do not wish to interrupt the Minister's flow but we are not talking about ridiculous instances. We are talking about the basic small family shop, which would not survive if the wife who came in to help had to receive the national minimum wage. Such people give their services virtually free. That is what we are talking about. We are not talking about eccentric examples. The Minister should give some credence to the sensitivity of the issue. There are many small businesses in this country which will undoubtedly go out of business if there is a blanket coverage for the national minimum wage.

With respect, I believe that the noble Baroness has in the past dealt with some extreme situations. I am entitled to an occasional riposte.

I do not wish to pick holes in the amendment because my objection is fundamental. I do not question the noble Baroness's integrity for one moment and she does her duty by probing these matters. Our approach is to make the Bill inclusive and not exclusive. It is part of the whole integrity of the concept of a national minimum wage. That is the basic reason why I shall ask the Committee to reject the amendment unless the noble Baroness withdraws it.

The whole essence of this matter is whether there is an employee relationship. I listened very patiently to what the noble Baroness said and she seemed to suggest that she was talking about small children. Perhaps I misunderstood her. Of course, that would not apply. The provisions apply only where there is an employment relationship. For example, in the case of a greengrocer's wife, one must ask whether she is working under a contract for money.

The noble Baroness then sought to pray in aid an insolvency case, the details of which I am not familiar with. The answer is that, in some cases, a director would be an employee; in other cases, he would not. It depends entirely on the contractual relationship which exists. In those circumstances, each case must be decided on its own merits.

I turn now to Amendment No. 119. Again, this amendment was discussed extensively on Report in another place. Under the Bill, a person who is a director of a company, limited or otherwise, would not normally be entitled to receive a national minimum wage because the legal status of a director, whether of a small or multi-million pound business, is that of an office holder. That is the distinction which must be drawn.

There may be cases where, in addition, a director has a contract of employment with the business and that contract may be explicit or implicit. In such circumstances, he would be an employee of the company and therefore entitled to the national minimum wage. That would apply to managing directors or directors who are one-man bands in charge of their own business.

The Bill makes it very clear that directors who are simply office holders will not be entitled to the minimum wage; directors who are employees will be. That is the very simple proposition. That distinction is derived from existing employment law. Therefore, we do not need the amendment because it would add nothing useful to the Bill. The definitions in Clause 54 make it quite clear who is covered by the Bill. Directors who are not workers will not be covered, whereas directors who are workers will be so covered.

In her references to director-employees, the noble Baroness raised various points which I shall try to answer. A director who is an employee of his own company could claim the minimum wage from that company in just the same way as such a director may claim other employment protection rights as an employee. The practical reality must surely be that nothing would be gained by pursuing such a course.

I cannot envisage that that situation will arise. That is why I said it is rather fanciful. Even if it did, can one really envisage enforcement officers being inclined to take action in such circumstances? I hope that the noble Baroness will withdraw the amendment.

I am even more disappointed with the Minister's reply to these two moderate and reasonable amendments. I believe the death knell will be sounded for many small businesses up and down the country if they realise that if they are given any assistance by a member of the family they will have to pay that person the national minimum wage. The noble Lord, Lord Haskel, shakes his head. I can tell him that I have already been approached by numerous small family businesses from all over the country on this matter. It is a brave government who think those feelings can be disregarded and that all will be well.

I do not seek to disregard the generality of the points that have been made by the noble Baroness. It is quite possible that we need to inform the public better on this matter as the noble Baroness herself misunderstood the position. Therefore it is perfectly possible that other people may misunderstand it. It is my job here to try to correct a mistaken impression. I hope that the noble Baroness will read carefully what I have said. I hope I have convinced the Committee that I have advanced a perfectly reasonable proposition. I hope that small businesses will not be misled by some of the statements which have been made tonight which need to be corrected.

Before the noble Baroness decides what to do with this amendment, I hope the Minister will answer my query about 19 year-olds who, for example, work for an hour and a half each evening in their parents' shop in return for board and lodging. Will they be excluded from the provisions of this Bill?

I thought I had embraced that situation in the remarks that I made. The matter depends on whether there is a contract of employment and whether there is a consideration in money or in kind in relation to that.

I would never pretend that the Minister is anything less than courteous when he corrects what he says is my mistaken view of the matter. However. I do not believe that I made a mistake. I believe that my interpretation of the situation is correct. However, I shall read carefully what the Minister has said. At this stage I shall withdraw the amendment but I shall probably return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 119 not moved.]

5.45 p.m.

After Clause 44, insert the following new clause—

EXCLUSION OF INCAPACITATED PERSONS AND EMPLOYMENT FOR THERAPEUTIC PURPOSES

(" .—(1) The Secretary of State may, after consultation with the Low Pay Commission, make an order exempting incapacitated persons from the provisions of this Act.

(2) An order under subsection (1) above shall provide for the issue of permits by the Secretary of State to those persons whom he believes to be incapacitated and may make provision for—

  • (a) the procedure for applying for and issuing such permits;
  • (b) the procedure for establishing the minimum wage to which each permit holder shall be entitled (being less than the single hourly rate prescribed under section 1(3) of this Act);
  • (c) the appointment by the Secretary of State of suitably qualified persons to assess such applications; and
  • (d) the procedure for appealing against a refusal to issue such a permit.
  • (3) No person shall be guilty of an offence under this Act in respect of an employee who holds a permit issued in accordance with an order made under this section.

    (4) For the purposes of this section, a person is incapacitated if he is so affected by physical injury or mental deficiency or infirmity due to age or any other cause as to be incapable of earning the national minimum wage.

    (5) A person whose employment is primarily undertaken for the purpose of therapy and whose employer is a non-profit-making organisation does not qualify for the national minimum wage in respect of that employment.").

    The noble Baroness said: Clause 44 of this Bill, which deals with voluntary workers, was numbered Clause 41 when it was discussed in Committee in another place. It was a bare 10 lines long. After debate in Committee the Minister of State properly said,

    "It is important that the Government reflect … and that we ensure that our proposals take into account the complexities of the issue".

    The result of that further reflection was the present Clause 44, which is now some 47 lines long and deals more fully with voluntary workers and those persons

    and organisations they help. In the light of the reasonable way that the Government have dealt with this kind of problem, it seems churlish to point out that there are still two serious omissions which must he dealt with.

    First, I refer to severely incapacitated persons and, secondly, to persons carrying out therapeutic work while in the employment of a non-profit-making organisation. I shall deal with the proposed exemption of severely incapacitated persons in the proposed new subsections (1) to (4) of my amendment. I believe these provisions speak for themselves and need no explanation. I should like to think they are acceptable to the Government without argument because the party opposite claims to be the party that cares, particularly for the sick and for the infirm.

    These four proposed new subsections have been carefully drafted so as not to constitute a licence to unscrupulous employers to exploit vulnerable persons by paying them too little. The Committee will notice that the proposed new subsection (2) provides for the Secretary of State to lay down procedures for the exemptions that I seek. I stress that there will be no blanket exemptions. Each case will be decided on its merits after an individual application has been made and will be granted only after the approval of a suitably qualified assessor. I assume this would normally be a doctor, as is the case with regard to claims for disability allowances. But, again, the Secretary of State will have discretion here.

    I have already suggested that I should have thought this part of my amendment would be acceptable to the Government without argument. However, I have been given no indication that the Government will accept it. Therefore I point out what I believe to be the implications of a refusal. We all realise that unfortunately and regrettably there are many persons whose disabilities make it difficult for them to obtain employment. These people want to work as best they are able. They do not merely wish to earn money or to have some occupation. It is even more important to them to enjoy some measure of independence and a feeling of self-reliance and self-respect.

    I quote from a paper published a few weeks ago by the Joseph Rowntree Foundation, an organisation whose views the Government usually approve. The paper states,

    "Disabled people may have been affected by a much wider and systematic shift in employment patterns. As the supply of labour has expanded faster than demand, employers have become more selective in their choice of staff. Marginal workers such as disabled people have been excluded … Preliminary evidence suggests that very few found a job".

    I believe this refers to those who lost incapacity benefit after the rules were tightened up.

    The Low Pay Commission in table 3.1 of its report states that,

    "16 per cent. of the long-term disabled currently earn less than £3.50 an hour".

    In its evidence to the Low Pay Commission the Royal National Institute for the Blind stated, on page 39,

    "Blind and partially sighted persons face bleak prospects in employment … Significantly, blind and partially sighted people are concentrated in lower paying, semi-skilled and routine manual occupations … Many blind and partially sighted people are therefore caught in poverty even when they are in work".

    I do not doubt that the same difficulties in obtaining work, discrimination in the workplace and low pay affect persons with other disabilities. It is simplistic to suggest that the solution to their problems will be to increase their pay entitlement. On the contrary, we believe that such action would increase their problems. It would make employers even less inclined to employ disabled people so long as they can employ able-bodied persons to do the same work for the same pay, possibly at a higher rate of productivity.

    What are the implications of a refusal by the Government to allow such persons the opportunity to go to work and to earn their own money after the most stringent inquiry into their individual circumstances as set out in the proposed new subsection (2)(c) of my amendment? The implications are that the Government, in pursuit of their policy of universality, will tell those people, "You may not work. You must simply live on government hand-outs in the form of disability allowances". Convicts will be allowed to work for less than the national minimum wage but not honest people who have committed the crime of being disabled. I cannot believe that the Government could reject an amendment with such important social implications.

    I now turn to the part of the amendment which deals with work carried out for therapeutic purposes. We are all familiar with the British Legion's poppy factory and with various forms of work carried out in workshops of the Royal National Institute for the Blind. I have no idea what these and similar organisations pay their workers but I am sure that they are as generous as they are able to be and may well already pay more than the wildest estimates of what the national minimum wage will be. The principal purpose of this kind of work is not to earn money for the organisation or necessarily to pay a living wage to the employee. It is to help the employee—who is suffering from some form of disability, including, for example, the loss of sight or of a limb, or some mental incapacity—to enjoy the dignity of following some useful occupation or simply to enable the employee gradually to recover a lost faculty.

    I recently paid a visit to community housing for people of a whole range of ages with learning disabilities. They run a pottery shop producing the most amazing range of vases, bowls and so on. I was presented with a beautiful vase as a souvenir of my visit. The person who made the vase had the benefit of passing time doing a practical job while at the same time having the satisfaction of knowing that he was doing something worth while. The person concerned receives full board and lodging, nursing and training, and receives a small personal allowance. He would receive the same even if he were capable of doing only very little, or indeed nothing. It cannot be right that such work should be treated as employment for the purposes of this Bill, or that a charity, which has to scramble for every penny, should be forced to make a commercial payment for providing what is, after all, treatment for someone who is a long-term or probably permanent patient.

    There are enough problems with this Bill, because the Government have a rigid, unbending desire to achieve universality. However, the Government have to make the concession that we seek simply to prevent what they see as an injustice to low-paid workers being replaced with another injustice to persons whose needs are no less important. I beg to move.

    In supporting my noble friend's amendment, I must apologise for not being able to be in my place at the beginning of the debate. I understand the desire of the Government to have as great a degree of universality as possible in the Bill. However, there have been exceptions. My noble friend referred to prisoners and share fishermen, and there are other special pleas. Surely this is a worthwhile exception.

    My noble friend reminded the Committee that under Clause 2 there are safeguards for disabled people. Employers, however lofty their motives, will in some cases be discouraged from taking on people from whom, through no fault of theirs, they cannot achieve the same degree of profitability as from fit people. I very much hope that the Minister will give careful consideration to this very reasonable amendment.

    I, too, wish to thank my noble friend for her amendment. I also apologise for not having been in my place earlier. This amendment is possibly one of the most important. Let us take, for instance, an institution such as that at Enham Alamein near Andover, which deals with people who have cerebral palsy. They are totally incapable of profitable work except as a minimal base. The object of the institution is to encourage them, particularly for therapeutic purposes. Those people are given a small sum of money each week to make sure that they turn up. It is not a profitable organisation in the sense that its books show a profit. It exists as a total charity. There should be some consideration for that type of institution.

    I thank the noble Baroness for moving, in a perfectly reasonable way, a point of very great interest. In that, she was joined by the noble Viscounts, Lord Bridgeman and Lord Oxfuird.

    This is certainly a difficult issue. The Government have given it a great deal of thought. The fundamental point is that disabled people should in no way be discriminated against in the workplace. I accept immediately the intention of the amendment. In effect, the noble Baroness wants a permit system to operate allowing partial exemptions on the basis of incapacity, and to exempt those who work for therapeutic reasons.

    The words in question are in subsection (1) of the amendment:
    "exempting incapacitated persons from the provisions of this Act".
    That is a dangerous route to follow, as I shall seek to argue. If it were to be followed, there is a risk of discrimination. I acquit the noble Baroness of any intention in that regard; however, that would be the effect. The amendment asks us to distinguish between the able-bodied and those who are,
    "incapable of earning the national minimum wage".
    It is a loose and difficult concept. In practice, it could easily lead to a totally unacceptable situation whereby some people were denied the national minimum wage when they had just as much right to it as anyone else. It could become the thin end of a very large wedge. It could deny the minimum wage to the very people who are most in need of its protection.

    The Low Pay Commission gave profound consideration to this issue. The commission's report includes the views of a number of groups representing disabled workers. Nowhere in the report is any of those groups quoted as favouring an exemption of the kind proposed for disabled workers in this amendment.

    What the Low Pay Commission had to say in its report is an important piece of evidence. There is no question of evading the issue. Perhaps I may ask the Committee to address paragraph 1.6 of the report, which deals with these matters. It states:
    "A small minority who gave evidence to us suggested exempting or having a lower level of the National Minimum Wage for people with disabilities. But the vast majority, including the Government, saw no justification for this. We believe"—
    these are the most important words—
    "that there are compelling arguments for treating disabled workers in the same way as other workers. To do so recognises the value of disabled workers to employers and supports a culture of social inclusion. Moreover, for those people with severe disabilities that limit their productivity, the Government funds the Supported Employment Programme which helps employers recruit and maintain these workers in jobs".
    That is essentially a right and proper riposte to the points made by the noble Baroness and other noble Lords who spoke on this matter. Why did the commission arrive at that conclusion? I submit that it recognised the overwhelming correctness of the case. The vast majority of people from whom it took evidence saw no justification for embarking upon the programme that the noble Baroness supports—and supports with total integrity.

    That brings me to a particular point of the amendment dealing with therapeutic earnings. The commission's report points out that the Government make provision for those with severe disabilities which limit their productivity. That helps employers in recruiting and maintaining in jobs workers of the kind that we are considering. Why should we disagree with the conclusion reached by the commission after such profound consideration?

    The noble Baroness seeks to dissociate her thinking from those conclusions. I think that that would be mistake. I am not saying that there is a compulsion for anyone to say that everything the commission has done is right; and, of course, the Government have chosen in one particular respect not to agree with the conclusions of the commission. However, where the commission has given such profound consideration to a matter of such sensitivity as this I believe that we should listen carefully to what it has to say. I hope that the noble Baroness will withdraw the amendment, although I have no doubt that I am right in anticipating that she will say once again, perhaps in different words, that she is disappointed. It has been an evening of disappointment for her, but I hope that she will recognise that these issues are not idly dealt with. They were dealt with, as I indicated, in the most cogent and profound way by the Low Pay Commission, and I ask the noble Baroness to accept that reasoning.

    6 p.m.

    The Minister tempts me to come up with a word other than "disappointed". It is hard, when standing on one's feet, to think of a variety of words without taking too long over it or testing one's powers too much. Between 1992 and 1995 only 2 per cent. of recipients of disability benefit moved from benefit into full-time work and only 200 of those receiving the present disabled workers' allowance have been encouraged into work by the benefit. I therefore have to say to the Minister that I am disappointed because I believe that what will happen is that very severely disabled people will simply not get work.

    Sometimes disabled workers will require extra facilities, such as specially adapted equipment and access and transport facilities, the cost of compliance with the Disability Discrimination Act 1995. If to that employers have to add the national minimum wage I fear that they will not do so because it will be too expensive for them. I hope that I am wrong and that the Minister is correct, but I fear that that will not be the case. At this stage, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clauses 45 to 47 agreed to.

    [ Amendment No. 121 had been withdrawn from the Marshalled List.]

    After Clause 47, insert the following new clause—

    AGRICULTURAL WAGES: REPORTS

    ("—(1) Within one year of the laying of the first regulations under section 1 or 2 of this Act—

  • (a) the Low Pay Commission shall make an evaluation of the impact of the national minimum wage established by regulations made under section 2 above as it affects workers covered by the relevant Agricultural Wages Order for each territory of the United Kingdom, and shall make a report thereon to the Secretary of State; and
  • (b) the Low Pay Commission and the Agricultural Wages Boards acting jointly shall make a report to the Secretary of State and the Minister for Agriculture, Fisheries and Food on the operation of section 46 of this Act and the enactments mentioned in section 47(1) and (2) of this Act, and may make recommendations for such amendment of that section and those enactments as, in the opinion of the Commission, may ensure the more effective application of this act to agricultural workers.
  • (2) The Secretary of State shall lay the report referred to in subsection (1)(a), and the Secretary of State and the Minister for Agriculture, Fisheries and Food shall jointly lay the report referred to in subsection (1)(b), before Parliament within 28 days of their respective receipt.").

    The noble Baroness said: Amendment No. 122 is placed after Clauses 46 and 47, which deal specifically with the agricultural industry. I can deal with it briefly. The only reason why agriculture is singled out for special treatment is that Clause 16 and the whole of Schedule 2 to the Bill deal specifically with agriculture as a separate industry, as indeed it is since it is the only one still to have a wages council.

    Clause 16 allows for the use of information gathered pursuant to agricultural wages legislation for some purposes of the Bill but imposes restrictions of secrecy in other directions. I would not wish any reasonable requirements of confidentiality to be breached. However, we believe that, in the interests of open government, any information in the possession of the Secretary of State for use in connection with this Bill, and any information which she has on which she may base any decision she makes in exercise of her powers under the Bill should be in the public domain, at least in general terms.

    I make no prediction as to how Clause 16 will have to be amended or whether it will need to be repealed altogether if the Government eventually produce their freedom of information Bill. The new clause simply requires reports to be made to the Secretary of State and to the Minister of Agriculture, Fisheries and Food on the workings of the Bill as regards this important and special industry after the first year of effective operation. Members of the Committee will have noted that it is just one pair of reports and that neither Minister is to be burdened with annual reports. One year should be enough to give a reasonable idea of how the industry is being, and is likely to be, affected.

    The Secretary of State is confident that the effects of the Bill can only be beneficial. We are sure that she will welcome an independent appraisal as regards the agricultural industry and the opportunity, if she is right, to share those excellent findings with Parliament. I beg to move.

    The noble Baroness referred to the matter of secrecy. Perhaps I may respond by saying that one person's secrecy is another person's commercial confidentiality.

    With regard to the amendment, it may be helpful if I explain briefly the three principles behind the Government's proposals as far as agriculture is concerned. The noble Baroness referred to the operation of the agricultural wages boards. The three principles are, first, that the minimum wage should apply in the agricultural sector as elsewhere; secondly, that we should not, through the Bill, seek to make wholesale changes to the existing agricultural wages regimes in England and Wales, Scotland and Northern Ireland, and that the agricultural wages boards will continue with their work; and, thirdly, that the same rules will apply across the board, both in agriculture and elsewhere.

    The amendment would require the Low Pay Commission and the agricultural wages boards to report to the Secretary of State and the Minister of Agriculture on the operation of the clauses in the Bill which govern this kind of interface between the national minimum wage regime and the agricultural wages regimes. The main effect of the amendment would be to require the Secretary of State to set up a statutory Low Pay Commission to report on these agricultural matters, whether or not in conjunction with the agricultural wages boards, and to that extent remove the discretion of the Secretary of State with regard to what matters to refer to the Low Pay Commission, and indeed to pre-empt and supplant the planned 1999 review of the agricultural wages regimes.

    I should point out that the review of the agricultural wages boards was planned for 1998 but has been postponed until 1999 to give a year to see how the two regimes—the minimum wage regime and the agricultural wages boards regimes—bed down together.

    Perhaps I may assure Members of the Committee that the matters referred to in the proposed new clause will be looked at, one way or the other, as part of the review of the agricultural wages regimes. However, I believe that it is too early to speculate on what role a statutory commission might have in the process. Certainly, it is unnecessary to prescribe details of coverage, timing and procedure, as the amendment seeks to do. Therefore, while appreciating the thinking behind the amendment, I do not believe that it is necessary. I hope that the noble Baroness will accept that and withdraw her amendment.

    I said that I could be very brief; I was very brief, as was the Minister. I shall read what he said. At this stage, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 48 [ Application of Act to superior employers]:

    Page 30, line 9, at end insert ("provided that in the circumstances it seems just and fair for him to be so deemed.").

    The noble Baroness said: Amendment No. 123 may seem at first sight to be a minor drafting amendment. In fact, it is not. The Government's approach to this clause is somewhat curious. I shall explain what I mean shortly. First, I should point out that deeming is a legal draftsman's device—trick is too strong a word—to make something exist when that is not actually the case. The Oxford English Dictionary defines the word as meaning to "think of as existing". Lawyers drafting contracts, or Parliament, in its wisdom, can deem almost anything. If Parliament says, "For the purposes of this Act, Monday shall be deemed to occur after Friday", then that will be the case.

    In this clause, the employee of an employee is also "deemed" to be the employee of the head employer. Why should a sub-employee be deemed to be the employee of a person who did not engage him; who may not even know him? Surely common sense tells us that the employer is the person who pays the worker's wages. However, I decided not to wrestle with that riddle because a much more important and serious issue arises from the clause.

    I said that the Government's approach seemed to be somewhat curious. That is something of an understatement. In the DTI Notes on Clauses, it states,

    "This clause closely follows the approach of Section 22 of the former Wages Act 1986".

    In fact, it does not; far from it. The clause follows word for word Section 22(1) of the 1986 Act. However, subsections (2) and (3) provided a defence for the head employer so that,

    "Where the commission … of an offence … is due to the act or default of some other person, that other person shall be guilty of the offence".

    In subsection (3) it states,

    "In any proceedings for an offence … it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions … were complied with".

    Why were those reasonable exceptions to this identical provision omitted from the present Bill? Why did the notes claim that the clause follows "closely"— I stress the word "closely"—the precedent of the Act introduced by the previous government when it clearly and manifestly does not?

    That is not all. Section 22 of the Wages Act 1986 was itself derived from Section 21 of the Wages Councils Act 1979. That contained the same provision as that proposed in Clause 48 of the present Bill, but with the same defences as are contained in the 1986 Act—defences not in the same words as in the 1986 Act, but entirely to the same effect. Those are the defences which the Government, for some reason, have seen fit to exclude from this Bill.

    The Wages Councils Act 1979 was derived from the Wages Councils Act 1959 and that too, in Section 18, contained the same provisions as appear in Clause 48 of this Bill, but with the same defences as were later incorporated into the 1979 and 1986 Acts. Nineteen-fifty-nine was 39 years ago, but I am not finished yet. I can go back even further. The identical provision with an identically worded defence to that in the 1959 and 1979 Acts was contained in Section 19 of the Wages Councils Act 1945. We have a history of the proposed Section 48 going back no fewer than 53 years, but always with the two defences which the Government are surreptitiously trying to drop.

    Clause 48 is a tried and tested clause, complete with two entirely proper defences going back through no fewer than five Acts of Parliament and two of those Acts were introduced under old Labour governments. When the present new Labour Government again introduce this tried and tested provision in the present Bill, they quietly deleted those long-standing defences which are intended to protect a wholly innocent person who is able to prove that any offence was not his fault but the fault of a third party.

    Why have the Government sought to create an absolute offence when, for over half a century, there has been a defence in certain circumstances? We want to know who gave the instructions for the removal of those

    two defences. Which Minister was it? No less important a question is this: why, in the notes to the Bill, did the DTI incorrectly claim that the present clause "closely"—again I emphasise that word—follows Section 22 of the Wages Act 1986? Which Minister, after deleting the two defences, gave instructions for the word "closely" to be inserted in the notes, which clearly and obviously originally read,

    "this clause follows the approach of section 22 of the former Wages Act 1986"?

    It does not remotely do so because of the omission of those two important subsections containing defences which were included in all the five Acts which directly preceded the present Bill. I should like to know the reason not only for the proposed exclusion of defences but also for the deceptive way in which the Government dealt in the notes with that major change—notes which stand the facts completely on their head—by saying that Clause 48 closely follows Section 21 of the 1986 Act when it does not.

    I realise that the Minister cannot be expected to answer those questions immediately. However, they are not rhetorical questions. I trust therefore that the Minister will agree to give me a detailed written reply to both those questions before the next stage of the Bill. The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Clinton-Davis and Lord Haskel, are all persons of the highest integrity and we can rely on them to give a full answer to these serious questions.

    My amendment adds a simple, uncomplicated, easily understood and reasonable defence. However, the Minister need not spend too much time in commenting on the amendment because I do not intend to press it tonight. The reason for that is that I expect the Government to introduce at a later stage an amendment incorporating into the present clause the tried and tested wording of the 1986 Act and its four predecessors.

    I realise that the Minister cannot give me such an undertaking today. As the noble Lord, Lord Clinton-Davis, pointed out at the beginning of the debate last Monday, at col. 1380, he is not in charge of the Bill; it is the Minister of State in the other place who is in charge. Perhaps it is to him the Minister should first direct our questions as to who altered the original section and ordered the incorrect insertion of the word "closely". I beg to move.

    Before the noble and learned Lord responds to the interesting and incredibly well-researched speech of my noble friend, perhaps he can respond to my question, which is much more fundamental.

    I ask the noble and learned Lord to put his mind to the concept of small businesses. A small business will have an employer, could well have a foreman or supervisor and of course will have an employee. In relation to this Bill, and ultimately the Act, surely it is the employer who is responsible for paying not less than the minimum wage; the foreman or the supervisor has nothing to do with that. Therefore, if the supervisor or the foreman is "deemed" under this clause—and assuredly they would be—surely the Bill is striking at the wrong target. It is the employer who decides on the wages, not the foreman or the supervisor.

    Perhaps I may deal first with the point made so effectively by the noble Baroness, Lady Miller of Hendon, in relation to the wording of Clause 48. The point she made with great vigour was that the Government had said through the Notes on Clauses that this is the same as Section 22 of the Wages Act 1986. She said that it is the same as Section 22(1) but that it is not the same as the remainder of that section because the remainder of that section has provision whereby, if the commission of an offence is due to the act or default of some other person, that other person is not guilty of an offence. It also says that in any proceedings for an offence under subsection (1) or (2) above it shall be a defence for the person to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Act, and of any relevant regulations made under it, were complied with by himself and by any person under his control.

    The structure of the Bill is that where there is a superior employer—someone above the immediate employer—he is made jointly liable as the employer with the immediate employer where certain specified circumstances are satisfied. If one then goes back to Clause 31 of the Bill, certain defences are included, including the defences which were formerly in Section 22 of the Wages Act 1986.I have not had a chance to compare precisely the defences under Section 22 of the Wages Act 1986 with the defences in Clause 31 because I did not know that this point would be raised. However, by the way the noble Baroness read them, they seem to be precisely the same defences as are included in Clause 31 of the National Minimum Wage Bill. The one that can be seen most obviously as being the same is in subsection (8) of Clause 31, which is the "I did everything I could" defence—the due diligence defence.

    The noble Baroness's point would be a good one if it was good on the facts. However, fortunately from the point of view of the structure of the Bill, I think it is wrong because these defences apply to anyone, whether he be a superior employer or not. Of course I shall check that that is the position, but I think it is. So, with respect to the noble Baroness, I think that her speech was based on a fundamental misconception. In those circumstances, I think it would be inappropriate for her to persist in the allegation that there was any deception on the part of the Government in saying that Section 22 has been followed, because I think it has been. Obviously, she will need to check what I have said but I think it was a misconception.

    She said in her speech that I should not bother too much with her actual amendment because this, as she saw it, better point became the fundament of her speech. If I may, I shall accept her invitation. It was accepted in another place that we had introduced this because there would have been considerable scope for abuse if we had not done so. Her amendment proposes that we should introduce a caveat to the application of the superior employer rule where the tribunal thought it was not fair and just to apply it. That is simply impracticable as a means of providing protection for people who are employed in this way in, for example, the agricultural industry, the construction industry or the textile industry.

    Perhaps I may deal with the point made by the noble Lord, Lord Skelmersdale. We are doing precisely what he suggested we are doing. If one does not have this amendment, the target—and the only target—would be, in his parlance, the foreman. One would not have the man who is actually paying the wages. Without Clause 48, the employer would be the foreman. What one needs to do is to bring in the real employer, who is the one above him, in order to make sure that the person who is in reality the employer—the person who is providing the wages—is caught by the Bill. Therefore, with the greatest respect to the noble Lord, I think we are doing precisely the reverse of what he suggests we are doing. We are bringing in the person who pays so that there is the real employer before the tribunal or the court.

    Before the noble and learned Lord sits down, perhaps he will consider subsections (6) and (7) of Clause 31. I am not convinced that his explanation in response to my noble friend's amendment stands up. Subsection (6) states:

    "Where the commission by any person of an offence under subsection (1) or (2) above is due to the act or default of some other person, that other person is also guilty of the offence".
    That may be fine, but subsection (7) states:
    "A person may be charged with and convicted of an offence by virtue of subsection (6) above whether or not proceedings are taken against any other person".
    It looks as though it does not necessarily provide a defence because one could gun for both parties whereas there might be only one guilty party.

    I think the noble Lord is right to say that subsections (6) and (7) are not defences. I was particularly referring to subsection (8), which states:

    "In any proceedings for an offence under subsection (1) or (2) above it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Act, and of any relevant regulations made under it, were complied with by himself and by any person under his control".

    The noble and learned Lord has given an interesting reply. We shall certainly want to look carefully at subsection (8) of Clause 31. However, as with all splendid answers, it tends to raise more questions than it resolves. If the head employer is to be deemed for the purposes of this Act to be the employer of the person jointly with the immediate employer, there is in subsection (2) of Clause 31 a requirement about the keeping or preservation of records in accordance with regulations to be made under Clause 9. I am not clear that I have understood the structure of this provision correctly. Does that head employer just have to make sure that the other employer with whom he is deemed to be an equal keeps records, or does he have to keep a separate set of records himself in order to comply with the provisions into which, through from that clause and into Clause 31 and Clause 9, he is drawn?

    The effect of Clause 48 is that the head employer—the superior employer—and the immediate employer are to be treated jointly. They are both regarded as employers of the worker jointly. The effect of that is that they are both employers and both have all the obligations of the Bill placed on them. Precisely how they comply with those obligations will depend on the facts in every case. It would be wrong for me to indicate that in a particular case it would or would not be sufficient if the records were kept by one of the two but both had access to them. It would be a question of fact in every case.

    I think the noble and learned Lord will want to return to this point because he will appreciate that, if the outcome of the interplay of these provisions is that a head employer cannot compel the employer who is closer to the employee to keep the records and if he has to keep his own separate set of records, some quite interesting issues begin to be raised about the burdens that might be imposed on relatively small businesses. I am sure it is not the purpose of this Government, any more than it was the purpose of the previous government, to impose unnecessary burdens and red tape on small businesses.

    6.30 p.m.

    I fully accept that it is not the Government's intention to impose extra burdens on anyone. We have to remember that the immediate employer will be the employee of the superior employer. Between them one would have thought that they could make sensible arrangements for the keeping of records.

    I am grateful to the noble and learned Lord for his instant reaction to my perhaps inopportune question. How does the clause relate to Clause 31(1) to which the noble and learned Lord also referred in the course of his remarks? That clause speaks specifically about the employer. Therefore, does Clause 48 mean, in the noble and learned Lord's terminology, both employers; namely, the head employer and the intermediate employer?

    Before the Minister answers, perhaps I may say that I have become slightly confused between what is an employer and what is not. Is it not all defined in Clause 54 which sets out that there has to be a contract of employment and therefore a simple supervisor cannot be a subordinate? Is that not the answer?

    Perhaps I may first deal with the question of the noble Lord, Lord Skelmersdale. It is quite a simple and clear structure. Clause 48 makes both immediate and superior employers joint employers for the purposes of Clause 31. Both can be guilty of an offence in Clause 31 subject to the defences in the clause. That legislative technique is adopted to avoid abuse where the real employer is the superior but he is using the immediate employer as a means of trying to get round this or any other provision.

    As regards the question put by the noble Viscount, Lord Thurso, broadly it is as simple as he said, subject to Clause 48, except that in Clause 54 there are circumstances in which there could be a relationship which gives rise to the payment of the national minimum wage whereas in strict legal terms there was not a contract of employment. I do not believe that the attractively simple solution he suggests can quite be applied.

    I thank the noble and learned Lord for his explanation. I shall read it very carefully. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 48 agreed to.

    Clause 49 agreed to.

    After Clause 49, insert the following new clause—

    FINANCIAL STATEMENT AND BUDGET REPORT

    (". The Chancellor of the Exchequer, acting in consultation with the Secretary of State, shall include in the Financial Statement and Budget Report an assessment of the cost of the national minimum wage to Her Majesty's Government in respect of employment costs in the public sector.").

    The noble Baroness said: I made clear to the noble Lord, Lord Haskel, that in moving Amendment No. 124 I would also speak to Amendment No. 125.

    "Unnecessary secrecy in Government leads to arrogance in governance and defective decision making".

    Those are not my words, but the opening sentence of the Government's recent White Paper Your Right to Know: Freedom of Information.

    "The traditional culture of secrecy will only be broken down by giving the people of the United Kingdom a legal right to know".

    Those are not my words, but those of the Prime Minister in his personal introduction to the White Paper.

    In the spirit of those fine sounding words, Amendment No. 125 is a simple but democratically important addition to the Bill. It anticipates the legislation that the Government say they intend to introduce. It can be summarised in a few, short sentences. Subsection (1) requires the Secretary of State and the Chancellor of the Exchequer to lay an annual report before Parliament as to the workings and the effects of the national minimum wage. Subsection (2) entitles the Low Pay Commission to make a similar report to the Secretary of State. If it chooses to do so, she in turn must lay that report before Parliament unless its report is already covered by her own annual report. Subsection (3) sets out nine headings under which the Secretary of State and the Chancellor are required to report. The Low Pay Commission may report on all or any of those headings as it thinks fit. Subsection (4) makes it clear that the reports can contain any other material thought to be relevant.

    The purpose of the amendment is purely in the interests of open government—a cause which the present Administration wish to espouse. It ensures that the Secretary of State keeps Parliament fully informed of those consequences—good or bad. It is information that Parliament is entitled to have—good or bad.

    The Government claim that the Bill will have no adverse effect on employment; no adverse effect on industry; no adverse effect on exports; and no adverse effects on the economy generally. If their confidence is not misplaced, then no doubt they will want to trumpet to the entire population the benefits that they have secured for it.

    If our predictions, unhappily, prove to be correct—and it will give us no satisfaction if they are, because of the detrimental effects—then it is only right that the Government should come to Parliament and admit their errors and say what they are going to do about them.

    Apart from the fact that there is absolutely no reason why the Government should not supply the information, this is definitely one amendment that the Government cannot arbitrarily reject, as they have so many others.

    The arguments for the new clause proposed in Amendment No. 124 are precisely the same as those I have just mentioned. Indeed, at one time I contemplated putting both clauses together, but I was advised that there might be different implications between the two.

    Again in the interests of open government, there should be no objection to the Chancellor telling Parliament at the appropriate time of the year how much it is costing the public, both as taxpayers and as council tax payers, to implement the Government's policy. I shall be glad to discuss any constructive modifications which the Minister may wish to suggest about specific aspects of the new clauses.

    Subject to that, if the Government say they are unable to agree to this very reasonable request in the interests of open government, then the information we want them to make public may have to be extracted from them rather in the manner of pulling teeth in an annual series of oral and written Questions which they will not be able to evade. I say "may have to be extracted", because the Committee will understand that I am in no position to predict what will happen in the future. I certainly have no part in tactical decisions. I can only express what is a personal opinion as to what conceivably might happen.

    I do not know whether the Minister had it in mind to agree to these amendments all along. If not, and if he wants time to consider the theoretical consequences that I have suggested might—I stress "might"—follow, I would be willing to afford time for consultation and bring back an agreed amendment or amendments at another stage. I beg to move.

    Before the Minister responds, perhaps I may intervene. As he is aware, we on these Benches stand four square behind the Government in their determination to ensure that the National Minimum Wage Bill goes through. However, as he well knows, there is an area on which agreement has not been reached with the Government; namely, the area which the noble Baroness has touched on. I and my colleagues have pressed the Minister on a number of occasions and each time he has avoided answering us, with incredible legal and political felicity. As a result of the events of last week we realise why his forensic skills in this area have been put to the test so much.

    However, I would like to take the opportunity to press the Minister again. It is important that the report from the Low Pay Commission is permanently enshrined in our legislative and statutory structure. It is important not only for the reason which the noble Baroness gave as regards full disclosure to the public—we share that view—but, more particularly, because of the fear I expressed last week in response to the Statement. Unless the Low Pay Commission is given permanent status and clear criteria are set out in the Bill as to the form of the report we can expect regularly, then every year we shall have the kind of undignified political football passing that we witnessed last week in the Government's response to the initial report of the commission. Therefore that is why I ask the noble Lord the Minister again to confirm that the Government will give permanent status to the Low Pay Commission and will bring forward amendments at Report stage to make sure that happens.

    If I may, I will speak to Amendment No. 125 at the same time as I speak to Amendment No. 124. Amendment No. 125 is the one which encapsulates what the noble Baroness is after, but that amendment—

    I was of course referring in my remarks to the forensic skills of the noble Lord, Lord Clinton-Davis.

    I assumed that was the position! Amendment No. 125 would require in its first subsection that the Secretary of State and the Chancellor of the Exchequer would together report to Parliament annually on the operation of the national minimum wage. The amendment proposes that they would need to take account of a host of factors: the economy and competitiveness, regional factors, comparative pay, unemployment and benefit levels, training and labour markets, small business, the disabled and age variations.

    These are all factors which the Low Pay Commission has looked at in coming to its recommendations and the obligation in the new clause for Ministers to report annually on them would in effect create a permanent monitoring duty in the Bill. The Government have no argument with the need for monitoring. It is clearly important to monitor the effects of any new legislation, especially in an area as important as the minimum wage, when a country has never before had a universal statutory minimum.

    As with all government policies, we will wish to evaluate the effect of producing a minimum wage in full, which is likely to include most, if not all areas listed in the proposed new clause in the amendment put forward by the noble Baroness. The amendment—this is strongly supported by the noble Lord, Lord Razzall—also sees a permanent role for the Low Pay Commission in continuing to monitor the impact of the minimum wage. The Government have made clear in publishing the report of the Low Pay Commission that they wish the commission to continue to monitor and research the impact of the minimum wage following its introduction.

    The criteria listed by the new clause in the amendment look sensible enough, though perhaps not exhaustive. Doubtless, given time, we could all come up with more which could be added. That points to one of the reasons why I ask the Committee to oppose this amendment, if it is pressed, because it is unnecessary and over-rigid to prescribe in primary legislation who should monitor and report on the impact of the legislation, how they should do that and when.

    Furthermore, however important the matters involved may be, it is important to recognise that producing such a report would be an extremely time-consuming exercise and its content could also overlap with other government documents, notably the competitiveness White Paper and possibly, to some extent, Budget documentation. It is therefore preferable to leave this matter open. An annual report from the Secretary of State and the Chancellor specifically on the national minimum wage could easily become seen as part of the annual pay round and lead to expectations of annual increases.

    Turning now to the role of the Low Pay Commission, which was specifically referred to by the noble Lord, Lord Razzall, the amendment—and this is supported by the noble Lord—impliedly presumes that the Low Pay Commission will be a permanent body with the power to initiate its own work and make reports, rather than having to wait for matters to be referred to it by the Secretary of State.

    I should start by making it quite clear that the Government fully appreciate the value of the work that the commission has carried out in making its report. I have also already indicated that the Government wish the commission to continue to monitor and report on the impact of the minimum wage following its introduction. The position envisaged by the amendment goes somewhat beyond what the commission was asked to do for its first report. The commission envisaged by this amendment would have the power, it appears, to report on anything it wanted at its own initiative, including a whole range of matters raised and debated previously both in this Chamber and another place at various times during the passage of this Bill. I can imagine that life as a commissioner in such a body would be incredible fun. It would be a job for a very long period indeed and there would be the opportunity to indulge in any particular matter of interest—and all, of course, at the public expense.

    I find it strange that the noble Baroness should support such a powerful and unaccountable body. This runs counter to other amendments she has put forward which seek to constrain and limit the Low Pay Commission's powers. Your Lordships should have no fear. The Government envisage the commission as task orientated, and not unlimited. It is right that Ministers, as elected representatives accountable to Parliament, should be responsible for the setting of those tasks, and one of those tasks is that of monitoring, as I have indicated.

    It is in order to maintain the task-orientated focus that the commission must be essentially reactive and not proactive. The commission must, of course, be independent in reaching its views, but the commission's ongoing activity should be within the framework set by politicians. There are good administrative and accountability reasons for this arrangement. I believe that the proposed amendment, together with the views expressed by the noble Lord, Lord Razzall, would go beyond what the Government believe is a common-sense structure for the commission's activities and in relation to reporting to Parliament. I therefore ask the Committee to reject the amendment, if it is pressed.

    6.45 p.m.

    Before my noble friend determines whether or not to withdraw her amendment, can I say to the noble and learned Lord that I thought he glided through that answer extremely skilfully. There is one point, however, on which I should like a little further clarification. There has been some political speculation, doubtless false, in the media to the effect that the Prime Minister is not wholly enamoured of the idea of the permanent existence of this Low Pay Commission. While he certainly indicated in his answer that the Government thought it desirable that there should be a permanent evaluation of what is going on, I am not sure that I actually heard him say that indefinitely and on a permanent basis the Low Pay Commission is to be the body which will do that. I may have misunderstood the position, but if the noble and learned Lord is in a position to say that the Low Pay Commission is to be a body of permanent establishment, it would certainly help to clarify the doubtless wholly unjustified speculation there has been in the media.

    I thought—but I was wrong—that my answer was entirely clear. The answer is this: we believe that this sort of policy is one which does require monitoring and evaluation. Secondly, we consider that the Low Pay Commission is a body to whom particular tasks—I see the noble and learned Lord laughs—can be assigned. I think that is perfectly clear.

    I thank the noble and learned Lord the Minister for his reply. When he started I got very excited and thought that perhaps at long last I was going to have one of my amendments accepted just like that. Therefore he will understand why I was slightly disappointed when we came to the end of his reply. However, I will read very carefully what he has said, and at this stage I beg leave to withdraw my amendment.

    Amendment, by leave, withdrawn.

    Clause 50 agreed to.

    [ Amendment No. 125 not moved.]

    Clause 51 [ Regulations and orders]:

    Page 33, line 19, after ("power") insert—

  • ("(a) of the Department of Economic Development to make an order under section 26(6) above, or
  • (b)")
  • The noble Lord said: I beg to move Amendment No. 126 formally.

    On Question, amendment agreed to.

    Page 33, line 22, after ("such") insert ("order or").

    On Question, amendment agreed to.

    Clause 51, as amended, agreed to.

    Clauses 52 and 53 agreed to.

    Clause 54 [ Meaning of "worker", "employee" etc.]:

    Page 34, line 7, after ("person") insert ("(including a partnership)").

    The noble and learned Lord said: I believe that I can move this amendment briefly. The noble and learned Lord will recollect that earlier in this Committee stage we were concerned about whether or not partnerships are to be treated as employers, and, if so, about exactly what liability would be imposed on individual partners. I am very much aware that under the law of Scotland a partnership is regarded as having a separate legal persona. A brief tutorial from the noble and learned Lord might be helpful and enable me to be confident that such a partnership is a "person" in the context of Clause 54, by which I am a little baffled. I trust that the answer will be yes. If the answer is in the affirmative, I wonder whether the definition is necessary. I invite the noble and learned Lord to answer my question in one of two ways. I beg to move.

    In rising to support the amendment, perhaps I may say that I am a little intrigued because we are considering definitions at the moment and the clause states that an "employer" is "the person". An employer might be a person, but it might be a company or a charity. It might even be—heaven help us!—the Government because some people who are employed by the Government are occasionally vulnerable, depending on their employment. I wonder whether for the sake of clarity the clause should not refer to "the person or organisation".

    While I am on my feet, I should add that I am a little concerned by subsection (5). Perhaps I may impose on the noble and learned Lord for a moment and quote from the subsection which defines "employment" as follows:
  • "(a) in relation to an employee, means employment under a contract of employment: and
  • (b) in relation to a worker, means employment under his contract".
  • Apart from the tautology, is not that a totally indecent form of class distinction?

    Perhaps I may deal, first, with the amendment which stands in the name of the noble Baroness, Lady Miller of Hendon, and which was moved by the noble and learned Lord, Lord Fraser of Carmyllie. I am glad to have the opportunity to clarify the position and status of a partnership for the purposes of this Bill. My noble friend Lord Clinton-Davis gave an initial reaction when asked about this point on an earlier occasion in Committee. I am now in a position to give a fuller explanation and shall do so.

    The amendment affects Clause 54(4) as to the meaning of "employer". It makes explicit that the notion of "person"—and therefore "employer"—incorporates a partnership. I can assure the Committee that the amendment is not necessary. By virtue of the Interpretation Act 1978, the word "person", when used in statutes, includes a body of persons whether corporate or unincorporate. A partnership in England and Wales is an unincorporated body of persons that has no separate legal identity. Scottish partnerships are not corporate bodies, but they have a distinct legal personality separate from their partners. The word "person" in Clause 54(4) therefore includes partnerships in both England and Scotland. I believe that that was the fundamental point raised by the noble and learned Lord.

    Partners are jointly and severally liable for the partnership's debts. In England and Wales each partner, some partners or all partners can be sued. In Scotland, only the partnership can be sued although the partners can be sued if the partnership becomes insolvent. None of that means that a worker employed to work for a partnership can recover the minimum wage more than once. There is only one debt and it follows that he can recover it only once. I hope that that fully explains the point raised by the noble and learned Lord when moving the amendment.

    I turn now to the point raised by the noble Lord, Lord Dixon-Smith. Clause 54(3) states:
    "'worker' … means an individual who has entered into or works under …
  • (a) a contract of employment; or
  • (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services".
  • Subsection (5)(a) makes it clear that "employment" (in relation to an employee) relates to a contract of employment whereas, under paragraph (b) (in relation to a worker) it relates to a contract that can be wider than a contract of employment because of the provisions of Clause 54(3). It is not a class-based distinction; it is a perfectly sensible distinction based on the wording of this Bill. I could not expect anyone to pick that up, given the speed with which I gabbled through it, but I believe that that is the answer to the noble Lord's point.

    I am delighted that my amendment has given the noble and learned Lord an opportunity to display his learning of the law on both sides of the border. I am grateful to him. He has reassured me that partnerships are included in these provisions. I still have a small query about whether subsection (4) is necessary, but perhaps the noble and learned Lord would care to reflect on that and possibly discuss it before the next stage. In the meantime, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 54 agreed to.

    Clause 55 agreed to.

    Clause 56 [ Short title, commencement and extent]:

    Page 35, line 12, at end insert ("but not before one year has elapsed from the day on which the Low Pay Commission makes its report and it is laid before both Houses of Parliament, together with a report from the Secretary of State on the results of consultation undertaken by him with representatives of industry and of small business on the content of the Commission's report or, where these events take place on different days, from the latest such day.").

    The noble Baroness said: I shall not be moving the amendment in view of the fact that the Low Pay Commission recommended, in paragraph 7 of its report, that the national minimum wage should commence in April 1999—that is, in 10 months, compared with the 12 months that I propose in my amendment. I do not believe that that is a difference worth arguing about. However, perhaps I may mention that I would not have been put to the trouble of having to argue the amendment—neither would the Minister nor his officials—if we had had a copy of the commission's report previously.

    [ Amendment No. 128 not moved.]

    Amendment, by leave, withdrawn.

    Clause 56 agreed to.

    7 p.m.

    Schedule 1 [ The Low Pay Commission]:

    Page 36, line 6, after ("and") insert ("at least").

    The noble Baroness said: In moving Amendment No. 129, I should like to speak also to Amendments Nos. 130 and 131, which are all drafting amendments to the first schedule of the Bill. The first schedule is to be incorporated into the Act under Clause 8(9) to create a permanent Low Pay Commission to replace the so-called non-statutory one which operates at present, the non-legal functions of which—I do not mean "illegal"—will be retrospectively ratified when the Bill is passed. The schedule sets out the constitution of the Low Pay Commission, makes financial provisions and regulates its proceedings. I should like to take each of my amendments in turn and to explain their purpose.

    Amendment No. 129 seeks to provide for "at least" eight members of the commission. For all I know, eight members may be more than enough—in the minds of some noble Lords, any number might be too many—but there could conceivably be a need for additional members if the complexity of the commission's operations demanded the membership of more experts. I am the last person to encourage an expanded quango such as this but, as the provision is purely permissive, it will give the Secretary of State scope to act, if necessary, without coming back to Parliament with an amending Act.

    Schedule 1(2) leaves the Secretary of State with the power to construct the membership in such a way as she may consider "appropriate". What the Secretary of State may consider appropriate may seem far from appropriate to others. Amendment No. 130 requires the Secretary of State to appoint a commission with an equal balance of persons with the necessary qualifications, and not mere token members from one group while packing it with members more amenable to a particular point of view. After all, in employment tribunals consisting of three persons there is a statutory balance between employers and trade unions. Paragraph 1(2)(c), as it currently appears, calls for the inclusion of

    "members with other relevant knowledge or experience".

    but what is relevant? Is it service on other quangos or membership of some purely academic think tank with no practical experience of the real world or knowledge of how to juggle a bank account to meet the payroll on a Friday?

    Two of the qualifications to which the Government have committed themselves are either trade unions or employer organisations. The third qualification to which the Secretary of State has coyly refrained from committing herself is the most essential one: knowledge and experience of business.

    Despite the two earlier paragraphs that require trade union and employer experience, experience of business is the key qualification that the present paragraph omits. That means that it comes in only by interpreting "other relevant knowledge or experience". Why does the Secretary of State not spell it out? Perhaps she wants an escape hatch to avoid the involvement of people from the real world of business. If I am mistaken on the point I am certain that the Minister will explain the reason for this serious omission and perhaps agree to put it right by including representatives of small businesses in any future commission.

    It is as if the Secretary of State, while window dressing a balanced organisation, deliberately wishes to ignore or sideline the unrepresented small business community whose interests are not the same as those looked after by the mighty employer associations. What the CBI or the IoD think is of no interest to a business running a factory with 50 employees, much less the owner of a hairdressing salon.

    That is the explanation for the point that underlies Amendment No. 130. It provides for the inclusion of at least one person who has practical knowledge and experience of running a small business. I do not in any way disparage the qualifications of any of the present members of the commission, especially Mr. Dewar. I am referring simply to the constituent members of the commission on an ongoing basis if the Secretary of State decides that it has any future. It is the small businesses that will be most affected by the national minimum wage, not the giant supermarkets who can easily cover the cost by adding one penny to a loaf of bread or a packet of salt; nor will it affect the large industrialists who already pay premium rates for skilled workers. But it will affect the local cake shop or pizza parlour.

    No taxation without representation! The national minimum wage is not a tax but it is money that comes out of someone's pocket. It is only right and proper that the voice of small businesses should be heard, even if it is not to be listened to, as I fear it may not.

    Clause 8(9) of the Bill gives the Secretary of State yet another permissive power which she may exercise or not as she chooses without further reference to Parliament. The power seeks to make the low pay unit an ongoing body once its initial functions on which it is currently engaged have been performed. The Committee should note that that power may be exercised at any time, not within a reasonable time. It may be exercised in a year, two years, four years, some time, never. The point is that whenever the Secretary of State in her wisdom feels the urge to have a Low Pay Commission she is stuck with it, if for whatever reason she later decides that it is redundant.

    Since the Secretary of State is busily giving herself powers to legislate by statutory instrument and all kinds of optional powers while steadily refusing others, she most certainly should have the option, which once again she need never exercise, to close down the Low Pay Commission if it is no longer required without coming back to Parliament with an amending Act.

    I am in some technical difficulty over Amendment No. 131. It appears in the Marshalled List as intended for the end of line 30 on page 36. I believe that it should have gone on page 7 at the end of line 5 which is Clause 8(9) to which I have just referred. The Committee has already agreed Clause 8 stand part and I do not believe that I can go back to it. If the Government accept this very reasonable amendment I believe they will be able to agree where it can be inserted at a later stage of the Bill. For the moment, I apologise to the Committee for not noticing the error until I re-read my notes earlier today. I beg to move.

    The noble Baroness demonstrated once again her deep opposition to the Bill in her closing remarks. I respect her position but I cannot agree with it. She resorted to a number of shibboleths. She said that small businesses were not listened to. That is simply not correct. Small businesses were widely consulted by the Low Pay Commission. The noble Baroness said that no member of the LPC had run a small firm. That is not correct. The member to whom she referred specifically has done so and is currently chief executive of the Scottish Grocers' Federation. It is patently incorrect to say that the views of small firms have not been consulted or considered in these recommendations.

    The noble Baroness disparaged the role of the CBI. I believe that members of the CBI are very knowledgeable about the interests of 190,000 small businesses, and perhaps even medium-sized enterprises. I have said many times that it is wrong to refer in this context to representatives. If the noble Baroness wants someone who has experience but is not a representative of any particular interest that is fine, but because these amendments have been drafted in this extraordinary way she has constantly ignored the position of the Government that these people are not there as representatives. Those individuals have expertise. Surely, the correct criteria should be expertise and independence.

    I should like to deal briefly with the remainder of the membership of the LPC. They were appointed not only within the criteria to which I have just referred but in a way that complied fully with the Nolan procedures for public appointments. The Government have stood rigidly by those requirements. The Government stressed in their advertisement for members that they were looking for individuals with experience of a range of industries and services. They were required to display a record of high achievement in the chosen area of expertise.

    We sought to achieve a balance of representation, and I believe that we have succeeded. The commission is there to try to achieve a reasonable consensus among the social partners. The noble Baroness appears to dismiss the trade unions as having no interest and no expertise in this matter. That is patently absurd. I entirely reject that philosophy. It was one of the many things that went wrong with the previous government. The previous government were deaf to many views held widely in the community because of ideology. That is not the input that we wish to make in relation to this or any other policy.

    The commission is not there to act as a forum for different parts of industry to pursue their own interests. We want balance. We do not want advantage. That is the approach which the Bill reflects and which is rejected, of course, by the Opposition.

    Amendment No. 129 asserts that eight should be the minimum number of members rather than the fixed number as at present. There is some advantage in flexibility. That would enable additional members to be appointed, but there is also a disadvantage. I should have thought that it would be clear to most Members of the Committee that there would be a risk of open-endedness and unwieldiness. While the choice of any particular member is, to some extent, arbitrary, we were determined to provide a group—I believe that we succeeded—of a reasonable and manageable size, including the chairman, comprised of three, identifiable, mini groups. That is the right way to achieve balance.

    The fixed size of the commission would enable us to combine a core of expertise and experience with a degree of flexibility and ease of management. The commission is sufficiently comprehensive to ensure a wide spread of interests and a knowledge of the various sectors of our industrial and business life. The commission could draw on extra support from others—people who can provide advice without being appointed as full commission members. That is what the commission has done in going about its business. That is an entirely sensible approach.

    The strongest argument for a group of this size may be that it seems to have worked well for the present non-statutory commission. So is it not sensible to adopt the same criteria for the statutory body?

    Amendment No. 130 would lay down strict rules about the make-up of the commission requiring an equal number of members from the employers' and employees' side. It would leave open the number of members to be appointed as independent experts, but with the upper limit that the independent members could not outnumber the remainder. The effect would be that the commission could, but need not, have a membership of which half consists of independent experts. I am sure that the amendment is a probing one. However it seems to be inconsistent with the general thrust of the case made by members of the Opposition in another place when they discussed the commission's membership.

    It was suggested there that once the commission had made its first report, academics could be weeded out. I do not know what would happen to them after they had been weeded out, but that was the suggestion. They would be replaced by those with direct business experience. The noble Baroness did not go as far as that this evening. By contrast, the amendment would increase substantially the number of academics on the commission.

    All these are matters of judgment. It is a question of balance. I believe that we have struck the balance correctly. It has worked in practice. That surely is the essence of the matter.

    I turn now to Amendment No. 131, to which the noble Baroness alluded. It would require the statutory Low Pay Commission to continue to exist once appointed—by default, as it were—until the Secretary of State is satisfied that there is no purpose in the commission continuing. I thought that I heard the noble Baroness argue that she wanted the whole thing wound up; but, there it is, she wants it to go on indefinitely.

    I believe that the noble Baroness is saying that the commission should be wound up once it had no significant functions to undertake. My noble friend referred earlier to the way in which the commission would work. It would be task-oriented; it would be linked to need. That is the basis for any future appointment of a statutory commission. On completing its task, we intend that the commission be disbanded if there is nothing further for it to do. The amendment assumes that the commission will have continuing duties, beyond reporting to the Secretary of State on the matters referred to it.

    Once the commission has reported on all the matters referred to it, it will have nothing further to do. There will be no point in continuing its existence. To some extent we are in unknown territory, because it is the first time that we have had a national minimum wage. So it is right to see what the impact is, and what follow-up will be necessary. We envisage the commission having a part to play in all that. We want monitoring of and reporting on the impact of a minimum wage, following its introduction. The amendment is superfluous or uncertain in its effect. I ask the Committee to reject it.

    Perhaps I may mention at this stage, because I believe that it will be the last opportunity for me to do so, and it is appropriate for me to say this before we close the Committee proceedings, that there will be another small batch of government amendments on Report. I had already indicated to the noble Baroness, Lady Miller, and the noble Lord, Lord Razzall, that some further technical amendments would be coming. I can assure the Committee that the amendments are highly technical. They are nearly all linked to and relate to the bodies for which the Secretary of State may make arrangements under Clause 13 for their officers to act as minimum wage enforcement officers, and the position that could arise following devolution as a result of the Scotland Bill. There is also one purely drafting amendment.

    I hope that the Committee will forgive me if I do not go into detail at this stage. I can assure the Committee that we shall be tabling the amendments shortly. I shall be writing with a detailed explanation to the noble Baroness and the noble Lord, as I did earlier for the other government amendments. Disappointed though I am sure she is, I hope that the noble Baroness will withdraw the amendment.

    7.15 p.m.

    I once again thank the Minister for the courteous way in which he dealt with my amendment this afternoon. Having formerly been involved in a small business, I do not believe that small businesses are represented sufficiently. I regret that. I say that in view of the many amendments that I moved today about spouses and so forth. However, I understand what the Minister has said.

    The Minister referred to Amendment No. 131. I am merely asking for a little more flexibility. I am not saying that the commission should go on for ever. I am trying to ensure that the Secretary of State has the flexibility that she requires. This is the final amendment that I move at this stage of the Bill. I thank the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Falconer, for the courteous and good humoured way they rejected all of my reasonable amendments, even though I argued them—in their words—so beguilingly. Nevertheless, at the next stage, I shall be returning to some of the amendments that I withdrew or did not move, by which time I hope that the Minister will have persuaded the Secretary of State to take a more positive attitude.

    Before the noble Baroness sits down, perhaps I may say that she has been most courteous and kind as she always is. I cannot call her my noble friend, although I can call her my friend, in other respects, as she knows. Both noble Baronesses and the noble and learned Lord, Lord Fraser, have been articulate—I cannot say helpful. This is not the appropriate time to thank everyone. I shall reserve that for another occasion.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 130 and 131 not moved.]

    Schedules 1 and 2 agreed to.

    Schedule 3 [ Repeals and revocations]:

    Page 52, column 3, leave out lines 45 to 47.

    On Question, amendment agreed to.

    Schedule 3, as amended, agreed to.

    House resumed: Bill reported with amendments.

    My Lords, the early completion of the National Minimum Wage Bill means that the time available for this evening's Unstarred Question is no longer limited to the one-hour dinner adjournment. The debate can now run for a maximum of one and a half hours. This change does not affect the maximum time available to the noble Baroness, Lady Byford, or my noble friend Lord Williams of Mostyn. But it increases the maximum time available for other speakers from six minutes to nine minutes. On the other hand, if, as I am sure they have, noble Lords have prepared their speeches in a succinct and concise way to last six minutes, I am sure the House will be grateful if they do not pad them out.

    Witnesses In Criminal Trials

    7.21 p.m.

    rose to ask Her Majesty's Government what progress they are making in reviewing the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, with particular reference to witnesses in trials of rape or indecent assault.

    The noble Baroness said: My Lords, I am not a lawyer or a magistrate but I was an active member of the Women's Royal Voluntary Service in Leicestershire. We worked alongside the police and the Prison Service and gave practical help to witnesses and their families at the Crown Court. I count myself fortunate to bring this Question before your Lordships tonight. I thank those noble Lords who will follow me.

    I wish to begin by commending to anyone who has not yet seen it the Home Office report, Speaking up for Justice. The interdepartmental group makes 78 recommendations. Therefore I have to conclude that our current system leaves a great deal to be desired. Moreover, none of the recommendations is earth shattering or extreme. On the contrary, they read as condensed, common sense recommendations.

    I am sure that subsequent speakers will share their expert knowledge of facets of the system. However, I call to your Lordships' attention one aspect which both disgusts and repels me and millions like me. I refer to the crime of rape and the treatment of the victim by the medical inspection team, the police, the legal service, the courts and the media. It is treatment which sells newspapers, fills public galleries and allows victims to be pilloried for their innocence. It is treatment which is deplored but still continues on one pretext or another. "Well, it's mainly date rape", seems to be in vogue at the moment, as though being on first name terms with one's victim makes it more acceptable. On the contrary, date rape and, more importantly, rape within a relationship are not only assaults but a betrayal of trust.

    During the passage of the Criminal Justice Bill through this House in February and March of this year, my noble friend Lady Anelay spoke of our concern at the way in which victims are dealt with in our courts. I accept that the accused person is entitled to a fair trial and has rights, but so, too, has the victim.

    Witnesses may be divided initially into two groups: those who are the victim; and those who are bystanders. Both types come in all ages and range from the articulate and the educated to those suffering from learning disabilities, or physical or mental illness. They all face a system which encompasses reporting the crime, assisting the police, making a statement, perhaps attending an identity parade, reporting to the court, giving evidence, undergoing cross-examination, awaiting the verdict and then living with the consequences. The way in which those persons are dealt with varies from area to area, court to court and official to official. Unfortunately our criminal justice system sometimes does too little to protect the weak, the disadvantaged, the abused and the frightened.

    I have the privilege of knowing a very brave lady who was herself a victim—in her case multiple rape over a period of hours during which she was imprisoned by her attacker. She has not had to cope with being cross-examined by her attacker. He pleaded guilty. Noble Lords should know that he was convicted of an earlier rape upon his long-term partner.

    While we were awaiting the report, much was being said. On 20th May of this year the Home Secretary confirmed that defendants in rape trials will be barred from cross-examining their victims in court. This was less than two weeks after the Lord Chief Justice had urged judges to put an end to lengthy and humiliating cross-examination of victims by defendants. It has also been reported that the Home Secretary proposes to prevent the accused from conducting his own defence and to introduce restrictions on the admissibility of sexual history in evidence. I am sure those measures will be welcomed; but when will they be introduced?

    The charity, Victims of Justice, in an article on 7th March of this year quoted 1,842 reported rapes in 1985 and some 5,039 in 1994, with a conviction rate which fell from 24 per cent., or 442 cases, to 8.4 per cent., or 423 cases.

    On 17th June this year, the Guardian stated that of the 5,759 reported rapes in the previous 12 months, only 1,380, or 24 per cent., actually reached court. In the main this was supposed to be due to a fall in rape by total strangers from 552 in 1985 to 460 in 1997–98; and to the difficulty of proving rape by an acquaintance or friend.

    The criminal justice system already sets limits on the court procedures applied to children and those with special educational needs. The charity, Victim Support, feels that those limits should be set on the cross-examination of rape victims by their aggressors, since it feels that to rely on judges' discretion is to trust that they will implement the guidelines and risk the judgment being overturned on appeal.

    I turn now to the details in the report. The interdepartmental review supports many of the views I have expressed. Many of its recommendations could be implemented quickly and at little extra cost. I give a few examples. Recommendation 36 refers to the use of CCTV in the courtroom. Recommendation 39 relates to media restrictions on the reporting of details likely to lead to the identification of witnesses. Recommendation 43 refers to preserving the dignity of witnesses by disallowing unnecessarily aggressive or inappropriate cross-examination. Recommendation 44 relates to restricting the right of multiple defendants to raise the same point more than once.

    Recommendation 52 refers to locating witnesses so that they cannot be viewed from the public gallery. Recommendation 53 refers to providing separate facilities for medical examination of the victim or the suspect. Recommendation 58 refers to the introduction of a mandatory prohibition for unrepresented defendants personally to cross-examine their victims. Those are only a few of the 78 recommendations, but even their implementation might encourage more victims to press charges and take their attackers to court.

    I spoke earlier of my friend who openly and gratefully acknowledges the treatment which she received in Leicestershire. After her attack, she was looked after with great consideration, compassion, kindness and competence. Officers and voluntary support workers alike treated her with great humanity and helped her to maintain her dignity. I would not wish any Member of this House to think that our criminal justice system is all bad; like the curate's egg, it is good in parts.

    In Leicestershire, the police force is using 1 per cent. of its sponsorship to raise £20,000 to establish specialist units in two Leicester hospitals. They will give a more friendly welcome to people who are under stress. The facilities at one hospital have already been identified and both are planned to be ready for opening in April 1999. The project would not have been possible without business sponsorship and support from local groups and individuals. It is a good example of the community's commitment to supporting vulnerable people. The units, with their specialist video facilities and counselling rooms, bring together the police, the health trust, social services and the voluntary sector, which are all so important in giving support when a person first reports a crime.

    I commend the Home Office report to your Lordships. As the Law Society stated, there should be national standards and detailed guidance covering the treatment of vulnerable witnesses at all stages. I agree and I urge your Lordships to use your expertise in encouraging others to take on board many of these recommendations. In doing so, I hope that other victims will be encouraged not only to come forward but to press their cases through the courts.

    7.31 p.m.

    My Lords, I warmly welcome the way in which the noble Baroness, Lady Byford, initiated tonight's debate. The recently published report, to which the noble Baroness referred, makes it clear that there are vulnerable and intimidated witnesses other than the most obvious examples of young children and adults who have communication or learning difficulties. Ordinary adults, those who are normally self-confident and even robust, can be intimidated by what is to them the peculiar circumstances of a criminal trial, particularly when being questioned about the most intimate and personal matters. It is good that the Government have already indicated their broad support for many of the recommendations. The noble Baroness mentioned that there are 78, and it is unlikely even that our hard working Minister will be able to respond to all of them tonight as the report was published only two weekends ago.

    I wish to concentrate on the way in which children are treated in the criminal justice system, particularly when they are victims or witnesses in trials for rape or indecent assault. I must declare an interest as a member of the fundraising board of the Justice for Children Appeal. For reasons which your Lordships will appreciate, it was established by the National Society for the Prevention of Cruelty to Children. The body was set up in order to focus attention on the particular kind of cruelty which can be involved when children are caught up in a system which has been devised for adults. The worst kind of cruelty may be when the victim of child abuse must go through the ordeal of giving evidence. That can be as traumatic as the abuse which he or she originally experienced. I suggest that there is a wider public interest than that of avoiding unnecessary cruelty to one victim: if a child is too distressed and too bewildered to tell his or her story, the guilty person will walk free and may well harm other children.

    My noble friend the Minister is a former trustee of the NSPCC. He will be aware that a survey by the society in 1995 found that the system so badly affected children that 75 per cent. said that they would not report abuse if it happened again and 25 per cent. said that the court case was as bad or worse than the abuse itself.

    I believe that two needs are almost self-evident. The first is the availability of help and support for child victims and witnesses. The second is to make appropriate changes in law and practice in order to ensure that our system of criminal justice is more sensitive to the needs of children.

    A year or so ago I was greatly impressed when I visited the south London branch of the NSPCC child witness support service in Penge. Teams of helpers are available to give children and their families practical and, just as important, emotional support when children are preparing for the unfamiliar experience of giving evidence in court. The team tries to answer the kind of questions and worries which children typically have.

    The excellent and long-experienced organiser, Maureen Carson, says that the most common worry of children is that they will be sent to gaol rather than the accused. As Mrs. Carson puts it, if that is at the back of their minds, they can hardly concentrate on what they are saying. The most obvious objective of the Justice for Children Appeal Fund is to raise the £2 million to £3 million needed to provide equivalents of the south London team and others elsewhere so that there is a comprehensive network of adequately resourced support and advocacy teams throughout the country.

    However, as the noble Baroness indicated, in relation to adults as well as children, for whom I seek to speak, there is a need to improve the criminal justice system itself. It would be wrong of me to suggest that only the NSPCC and other private bodies such as Victim Support have a monopoly on concern. This Government and the previous government have sought to be active in, for example, commissioning research and evaluating existing legal provisions which enable the use of video recorded evidence. The Government have worked with the NSPCC in seeking to reduce the awful time-lag before cases come to trial—that must be worse for children than adults—and in revising what is called the "Young Witness Pack", which I have with me and which was made available at its official launch on Friday last by the noble and learned Lord, Lord Bingham, the Lord Chief Justice.

    It is true that in many cases a child will be screened off from the man charged with abusing her and allowed to give video taped evidence. But that is not universal and it is nine years since the Pigot Report, commissioned by the Home Office, proposed that children should invariably be cross-examined in a child-friendly environment where they will feel more relaxed before the trial, with a video of their answers being shown to the jury. Only rarely, when new evidence arises requiring cross-examination, would they need to be called into the court itself.

    I notice that paragraph 8.56 of the recently published Home Office interdepartmental report states:
    "This recommendation has not been implemented. It has been argued that pre-trial cross-examination would not remove the need for further cross-examination by the defence at the trial and might add to the child's distress in having to go through the cross-examination on more than one occasion".
    However, it refers also to the recently published Utting report; that is, the report by Sir William Utting in 1997 entitled People Like Us which recommends the implementation of the nine year-old Pigot report in the way that I am suggesting. There should invariably be cross-examination beforehand in a child-friendly atmosphere and it should be video-recorded. I hope that the Government will look very favourably on the ideas in the report.

    7.40 p.m.

    My Lords, since this Question was first tabled for debate and since the specific topic of rape cases was last debated at the Report stage of the Crime and Disorder Bill there have been, as your Lordships have already heard, three important developments.

    First, there is the judgment of the Court of Appeal in the case of Brown (Milton) on 6th May stating that it was clear duty of the trial judge to do all that he could, consistently with giving the defendant a fair trial, to minimise the trauma suffered by the other participants in the court process. That judgment contains a firm, authoritative restatement of the judge's power to control and curtail those dangerous, unrepresented defendants who try to get some sort of a "kick" out of humiliating cross-examination of their victims to add insult to injury. The judge has to ensure that any defendant has a proper opportunity to put his case and that the defendant is not prejudiced in the eyes of the jury. The judge has also the power to insist that the defendant does actually put his case to the witness, and the power to insist that he does not unnecessary report himself; and, if necessary, the judge can import a timetable on the defendant as on any advocate.

    It has to be remembered that those problem cases of unrepresented defendants charged with sexual offences are only few in number. But they can have a disproportionate deterrent effect on other victims of sexual offences, not least because what is reported in the press is the fact of the personal cross-examination of the victim by the defendant and the judge's comments usually at the stage of sentencing after conviction. However, the press does not report the controlling measures taken by the judge, and his remarks to the defendant in the absence of the jury during the trial itself. It is noticeable that in the case of Brown, the Court of Appeal observed that the judge had done everything he thought he could do to protect the complainants.

    The second important development is the recent report of the interdepartmental working group on the treatment of vulnerable and intimidated witnesses in the criminal justice system. On the particular problem of direct, personal cross-examination by defendants, the report recommends a mandatory prohibition in cases of rape and serious sexual assault, with a number of other proposals for dealing with the most intransigent defendants. Some people will say that the right of the defendant to represent himself, however incompetently, and subject to firm control by the trial judge, should not be infringed just because of a small number of difficult cases. They will argue that video technology or screens in court can be tried before altogether barring personal cross-examination by the defendant. It can also be said that by no means all defendants who act in person, unrepresented, do so aggressively or unpleasantly; some conduct themselves properly and politely. However, on balance I think that the recommendations of the report provide the better solution for this problem in the small number of cases in which it arises.

    Of far more significance in cases of alleged rape and sexual offences, whether or not the defendant is represented, is the recommendation in the report for amendment of Section 2 of the Sexual Offences (Amendment) Act 1976 concerning evidence and questioning about a complainant's recent sexual history. The vagueness of the existing statutory provision, only relieved to some extent by decided case law, is a reflection of how difficult that problem is and will remain. The report points to alternative legislative provisions in Scotland and New South Wales. Any amendment to the 1976 Act which is to be an improvement must do more than simply replace one set of provisions with another set of provisions which are just as vague and subjective but in different ways. That is what is said to have happened to the Canadian criminal code. If the Scottish model is to be used, there most certainly must be further consultation and research, followed by the use of considerable drafting skills which will be required to provide a fair, workable and lasting replacement for the 1976 Act.

    The working group's report is an impressive and comprehensive piece of work dealing with a much wider range of problems than those particularly referred to in the Question before the House. It covers all types of vulnerable witnesses and their treatment both in and out of court and explores both the law and practical procedures. Out of court, it suggests that victim support schemes are somewhat patchy geographically. In court, I welcome the report's premise that there should be a generally available "menu" of measures to help witnesses.

    The report recognises that the system of justice depends on the willingness and ability of witnesses to give evidence and that the quality of their evidence depends on removing stress and inconvenience. Lawyers take for granted going to court and talking in public. We sometimes forget how nerve-racking some people find the whole experience, whether or not they themselves have been the victims of the crimes alleged. I remember calling a dentist to give expert evidence in a civil case and after two harmless questions from me in examination in chief, he passed out. On coming round, he said he found the whole experience a terrible ordeal. It did not seem to me to be the time and place to remind him how we feel when going to the dentist.

    However, there is much in the report of practical assistance. Witnesses no longer have to give their addresses in criminal cases. Children often give their evidence after the lawyers and the judge have removed their wigs. Moreover, I certainly welcome recommendation 52, to which the noble Baroness referred, concerning the placing of what is now inappropriately called the public gallery. In our user-friendly courts, the supporters and friends of the defendant are often uncomfortably close to the witness box.

    As the noble Lord, Lord Borrie, said, how much more difficult it must be for child witnesses having to describe matters which adults find awkward to talk about. The time limits on this debate prevent further discussion. However, I welcome recommendations 45 and 46 of the report in relation to video recorded pre-trial cross-examination as proposed in the so far unimplemented Pigot Report. That will add to the existing law in ensuring that a child's evidence is tested when it is still fresh; it will relieve the pressures on child witnesses which can lead to charges having to be dropped; and it will encourage early and realistic pleas of guilty.

    The most encouraging part of the report comes at the very end, in Annex J, where current initiatives and research into child evidence are summarised. They include the third recent development which should be mentioned—the launch last week of the "young witness pack". The work of the NSPCC in the whole area of helping young witnesses—work which some years ago was suspected by the judiciary as tainting the evidence of children—is now justifiably respected in reducing the ordeal for them and in improving the quality of their evidence. Cases involving children require special handling and skills. No judge, magistrate or advocate should be involved in cases involving child witnesses on important issues without having seen the good practice video "A Case for Balance' produced by the NSPCC last year.

    The aggressive advocacy or the clumsy, stilted questioning, which are just tolerable in cases involving adults, are not acceptable when children are giving evidence. The legal profession is aware of the importance of that point in terms of training and professional conduct. The speed, efficiency and sensitivity with which cases are handled within the criminal justice system, dealing with what happened to children in the past, have considerable implications for the progress and outcome of their cases in the family justice system which decides what happens to them in the future.

    7.50 p.m.

    My Lords, I welcome this opportunity which has been given to us by the noble Baroness to discuss the treatment of vulnerable witnesses within our legal system. As we have already heard, a report has been published on vulnerable and intimidated witnesses. That report contains an important set of recommendations which I hope will find their way into the system at some point and into legislation where that is appropriate.

    I have spent over 25 years practising at the Bar within the criminal justice system. During that time I have taken up opportunities to speak to women's organisations up and down the country. I have probably done so more often than any other lawyer in this House. Those women's organisations have covered the spectrum of political opinion and of age groups. They include women of every colour and women who are students as well as professional women. I have spoken to women who are knowledgeable about the law and to women who know little about it. From those discussions has emerged the concern that women feel at the way in which offences against women, such as rape and indecency, are dealt with by the courts.

    Women will repeatedly tell you that if such an offence were perpetrated on them or on their children they would be unsure whether to take the step of commencing legal proceedings. It is shameful that even women magistrates will often say, "I am not sure I would expose myself or a member of my family to such a process". However, much headway has been made. Considerable shifts have occurred in the policing and investigation of sexual offences. There has been a great improvement in the responses of the courts.

    However, we still have a long way to go. If we want to gain the public's confidence in the system, we need to do a great deal of work in this area.

    The low conviction rate in rape cases is still a scandal which we must address. I am pleased that the Government wish to take a number of measures as regards trials for rape and indecency. One of the remaining problems is the profound resistance of the profession and of the Bench to changes in what are perceived to be fundamental rules. Yet considerable change has occurred with regard to children giving evidence in our courts. The system has not collapsed under the novelty of that change. Over a number of years many of us expressed concern about the way in which children were cross-examined in the courts as children were terrified to give evidence on matters which made them feel profound shame. They were terrified of giving evidence about adults with whom they had often had a relationship.

    Following the Pigot Report, interesting and yet resisted changes occurred. Two-way video is now used regularly in our courts to allow children to give evidence without their having to enter the courtroom at all. They can give evidence in an adjoining room and be able to see the lawyer or the judge who is speaking to them. Wigs are removed. Children's experience of giving evidence has been greatly improved. However, those changes were resisted by much of the Bar and by some on the Bench. It was said that one of the basic rules of our system is that witnesses should give evidence in person and defendants should have the opportunity to see them across a courtroom. However, the changes I have mentioned have not interfered with justice. I welcome the fact that the report suggests that where a court or a judge considers that an adult witness may be vulnerable similar steps may be taken to protect such witnesses in trials involving sexual offences.

    The profound conservatism of the Bar is often concerned with ensuring that defendants' rights are protected. As a lawyer committed to the rights of defendants I am anxious to ensure that those rights are maintained. However, I strongly support the recommendation that a prohibition is made on unrepresented defendants personally cross-examining complainants in cases of rape and serious assault. A number of cases have occurred where such cross-examination has continued for a number of days. Noble Lords such as the noble and learned Lord, Lord Ackner, say that experienced judges can hold the reins in the courtroom and can prevent such cross-examination. However, in the case of particular defendants that becomes unseemly and impossible. Not all judges have the force of personality of the noble and learned Lord, Lord Ackner, and can strike sufficient terror into a person's heart to prevent that kind of behaviour by a defendant. It is not fitting for the system to witness the kind of exchanges that would inevitably occur if judges alone had to prevent invasive cross-examination. The noble Lord, Lord Meston, spoke of the deterrent effect on women of some cases that have occurred. It is shocking to hear women speak at public meetings of their fear that this is a choice available to their assailant which he may well exercise, as it can strike fear into the victim and possibly prevent her giving evidence.

    I welcome the change we are discussing. I hope that it is not resisted by my noble friends. However, I note that some of my colleagues from the Bar will speak after me in this debate. I suspect that they will err on the side of conservatism. It is important that for once we listen to what women are saying about the way in which the criminal justice system has failed them. This matter is particularly important as regards cases where women are related to, or have had a relationship with, the man who is cross-examining them. Often men who have an obsessive interest in a previous partner are the very people who choose to cross-examine them. This also occurs in domestic violence cases. I welcome Recommendation 59 which states that in particular circumstances the prohibition can extend to other kinds of case according to the judge's discretion.

    I also welcome the restriction that will be imposed on the cross-examination of women on their sexual history. The report suggests that we should consider the situation in Scotland or in New South Wales in making that limitation. I make another suggestion; namely, that the Government should consider the case of Regina v. Morgenthaller. That case came before the Supreme Court in Canada. The judgment in that case became seminal in the Canadian system in relation to the handling of rape cases. The judgment was given by Madame Justice Beverley McLoughlin, a Supreme Court judge. She was interesting about the way in which judges, prior to that judgment, as here in Britain, very often allowed the cross-examination of victims inappropriately—where it was unacceptable and invasive—as a result of their inappropriate attitude to women's sexuality. Men in our courts still often have the view that certain kinds of women invite sexual assault. There is often an indulgence given to men on trial that they are somehow the victims of their own libido, and that somehow, like the washing machine cycle, once they are turned on there is no going back. Women are held responsible for male activity.

    I therefore urge the House to support the recommendation that we introduce and examine other ways of dealing with sexual history and seek to reduce cross-examination in relation to it; and that we accept the body of evidence from Professor Sue Lees that this kind of cross-examination is being allowed much too regularly by our judges.

    Finally, good judicial training can remedy many of the faults of our judiciary with regard to the conduct of these cases. I hope that those judges in our midst will lend their weight to good training on gender issues within our legal system.

    8.1 p.m.

    My Lords, I seek in no way to detract from my total acceptance that rape is a serious offence for which a period of imprisonment is almost inevitable. It is so serious in some cases that a sentence of imprisonment for life is properly imposed. I also accept entirely that a woman is entitled to withdraw her consent at any stage—although, if the signals change from green to red without any intermediate amber, she must not be surprised if from time to time juries acquit.

    My first point is that there are a number of special rules which apply to rape cases and to cases of serious sexual offences. There is the anonymity that is conferred upon the complainant. There is the restriction on questioning designed merely to go to the issue of her credibility which would be permitted in relation to other offences. We have recently removed the obligation to give directions on corroboration which contained a warning to juries about the various unsuspected motives that there might be for a made-up case. What we have not yet reached—and I am delighted that that is the case—is changing the onus of proof. It is still obligatory for the prosecution to prove the case against a defendant beyond all reasonable doubt.

    I make that point because the phrase, "victims of rape", is used throughout the Home Office report. I refer to pages 61, 64, 65, 66 and 67. Strangely enough, it is even used in the Bar Council briefing. That gives the impression that the case is already decided or that there is some prima facie assumption to be made against the defendant. That is utterly wrong. The term "victim" should in every case refer to "the complainant". That is what we are concerned with. A victim is someone against whom the offence has been committed.

    I have made submissions twice recently to your Lordships in relation to the Crime and Disorder Bill, both in Committee and on Report. It gives me a profound sense of relief, as it no doubt does to your Lordships, that there is no need for me to repeat those submissions because I find that a great deal of what I said, and what was said by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, has been repeated by the current Lord Chief Justice in the case of Regina v. Brown, to which reference has been made. In regard to my previous comment about victims of crime, I wish to refer to what was said by the Lord Chief Justice. His judgment states at page 6:
    "Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not".
    I submit that the recommendation of the Home Office committee is flawed because it does not draw a distinction between the two distinct categories of rape. One is "date rape", referred to on 15th June in an article in The Times giving an indication of what the special Home Office committee was in the process of discovering. The article states:
    "Half of rapes are 'date rapes' by boyfriends, former partners or a close friend … The finding—an increase from 35 per cent [to 50 per cent. between 1985 and nowt—is thought to account in part for a sharp drop in the conviction rate".
    The article points out that although rapes reported to the police rose by 14 per cent. in the period 1996–97, the conviction rate fell from 24 per cent. in 1985 to 9 per cent. in 1996. The article continues:
    "Initial findings suggest that this might be related to a large proportion of rapes involving intimates (date rape) being reported and those offences tend to be more difficult to prove than those involving strangers".
    Rapes by strangers fell from 30 per cent. to 8 per cent. of the total.

    I submit that it is utterly unrealistic to say that a defendant in the date rape type of case should be debarred from personally asking questions. His reason for wishing to ask questions may not be idiosyncratic. It may be due to the belief, which may be a justified one, that the complainant, when faced by him asking questions, will no longer be able to continue to lie about what occurred. To suggest that someone intimately known to the complainant should not be allowed to ask any questions is totally unjust.

    In regard to rape by a stranger, the position is significantly different. Once again, we have the advice of the Lord Chief Justice in the Brown case, which reads as follows:
    "Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can he elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way that we have indicated".
    I ask the Minister to indicate to what extent the judiciary was consulted by the civil servants who sat on this committee. It does not look as if those civil servants have had the advantage of the practical advice that would be given by practitioners and members of the judiciary. I suggest that we leave this matter to the advice given by the Lord Chief Justice, knowing that it will be emphasised by the Judicial Studies Board in its relevant courses.

    8.12 p.m.

    My Lords, as a criminal lawyer frequently engaged in trials which concern sexual offences, vulnerable witnesses and, sadly, child witnesses, I should declare an interest. I should also declare an interest as one of the women to whom my noble friend Lady Kennedy of The Shaws referred. If either of my two young teenage girls came to me with an allegation of sexual attack, I would, as a result of my own experiences, think very long and hard before urging them to take the matter to the police and thence through the courts, which is perhaps some indication of how wrong I think matters are at present.

    That said, I am bound to sound a note which may perhaps sound slightly discordant to some of those who have spoken before. Although most of the report is admirable in the extreme, I detect in some parts of it an understated assumption—indeed one which is clearly stated in Recommendation 43—that witnesses in the criminal courts, particularly vulnerable ones and ones who are intimidated, are inevitably truthful. Recommendation 43 speaks of witnesses "performing a public duty". I have no doubt that the vast majority of them are doing so or are trying to do so; but any changes which we now make must take into account the fact that some witnesses, including some vulnerable witnesses, are not.

    My experiences in the courts have led me to believe that false allegations are on occasions made, in particular by children, sometimes without any appreciation that, for example, a conversation with a schoolfriend about a disliked step-parent may so easily lead to a trial at the Old Bailey and that, once made, an allegation which may be either exaggerated or plain false can trigger a process which is then virtually unstoppable. To find the courage or the means to retract such a falsehood is usually impossible for an adult, let alone a child. No changes must be made which prevent the truth emerging in such cases. The aim of what the Home Office decides to do must be, as I am sure it will be, to try to ensure that justice is done, not only by seeing that those who have committed crime are tried and convicted but also that those who are falsely accused are not.

    In the moments that I have available to me I shall concentrate on victims of sexual offences. I think it is right to remind the House that those victims include men and boys, as well as women and girls. This is not a battle of the sexes. These offences strike at all parts of our community and all age groups. The question that the Home Office will no doubt consider in looking at this report is how we can make it easier for those people to come forward and give their evidence.

    If one speaks to someone who has been attacked and has not reported it and asks them why they have not reported it, in my experience the answers almost invariably fall into one of the following categories. The first is delay. They do not want the matter, and in particular a court case, hanging over them for months on end. They want to get the matter out of the way and put it behind them. Secondly, they are afraid of having to see the defendant and possibly confront him in court. Thirdly, they are embarrassed to speak out in front of a lot of other people in public, particularly about intimate matters. Fourthly, they are frightened of being unable to stand up to the barristers and feel that they will do badly in cross-examination. Lastly, they often do not think that they will be believed.

    Of all the recommendations in the report, one which has not yet been mentioned I commend in particular to your Lordships when you come to consider it. Recommendation 55 states that:
    "In the case of victims of rape or serious sexual offences, pre and post-trial support should be provided by an agency other than the police, such as Victim Support".
    What a vulnerable or intimidated witness needs in these cases is a friend outside the family, not part of the investigating process or the investigating authorities, with no agenda save to ensure that the witness understands the options and procedures and can talk freely and in confidence to someone who can act as an intermediary with the police and the court, if necessary. As is so often the case today, a police officer trying to fulfil that role sometimes has a primary purpose of ensuring that the case proceeds to conviction. In a sex case, particularly where a child is involved, pressure and intimidation, one way or the other, too often comes from within the family, particularly when a family member is being accused. Vulnerable witnesses need, above all, a supporter to be available for them before and after the trial and during the evidence, if they so wish.

    The witness should have the choice of giving evidence live in open court; in court behind a screen, hidden from the defendant; or on closed circuit television. Anything which helps to make a witness feel more at ease is likely to assist the truth to emerge, whatever the truth is. But the choice that the witness makes should be an informed one, and the witness should know that the impact on a jury of evidence given on a television screen is much reduced. I have no doubt that closed circuit television is an advantage to the defence when it is used.

    In appropriate cases it must be right that cross-examination on video well before the trial should be possible. But the defence and the Crown must retain the ability to ask further questions by video link, at trial if necessary. Those of us who practise know very well that all the prosecution witness statements, the defendant's full instructions and the statements of all the defence witnesses are sometimes not available until very shortly before the trial and may require further questions to be asked of a witness if justice is to be done.

    If those changes alone were made, they would in many cases go a long way to addressing delay and to the question of facing the defendant in person and speaking out in public. I am not entirely happy with the suggestion that no defendant in a sexual case should ever be permitted to cross-examine the complainant. My reasons differ perhaps from those of the noble and learned Lord, Lord Ackner, though I agree with the points he made. Few defendants are foolish enough to do so because cross-examination in those circumstances is specialist and requires specific skills and experience.

    As we have been told, the judge has the power to intervene and stop abusive, insulting or intimidating cross-examination. Perhaps in an appropriate case, where the specific conduct of a witness, the type of offence—I think particularly of stalking offences and matters of that kind—or the relationship or conduct of the accused, make it in the interests of justice for a defendant to be protected and indeed prohibited from cross-examining the judge should be able to require that he be represented for that purpose. However, I have known a victim in a rape trial who was anxious—no, determined—to confront her attacker in person, and a devastating witness she was. Hard rules can lead to injustice.

    Similarly, if cross-examination by a barrister is insulting, bullying, aggressive or too long, judges can and in my experience certainly do intervene to stop it. Contrary to what has been said, in the 28 years or so that I have been in criminal practice, it has not been my experience that unnecessary or irrelevant cross-examination about previous sexual history is allowed. Indeed, judges today take the greatest care to ensure that the reasons, the nature and the extent of the cross-examination are explained before they will allow any questions of that nature to be asked. I question therefore the need for change in that respect. It is necessary in each case for the specific facts which led to the request for those questions to be asked to be explored by the court.

    Of course, it is right that no witness, even one who is telling lies, should be bullied, and judges can and do prevent that happening. No judge who is robust is likely to be criticised. Sexual allegations can be made with relative ease. They can be difficult to disprove because so often only two people are present and there is no independent evidence. The truth can only emerge if the evidence can be fairly given and fairly tested. Witnesses certainly need more help than they receive at present; but those who are falsely accused do not need less.

    8.23 p.m.

    My Lords, I hope your Lordships will forgive me if I intervene briefly in this discussion. I will confine myself to the proposal to prohibit a defendant appearing in person from cross-examining the complainant.

    I sat as a trial judge and in the Court of Appeal in a jurisdiction where rape was regarded as an extremely serious offence. I share the view that before severe punishment can be meted out, the case must be proved. The noble Baroness, Lady Kennedy, rightly reminded your Lordships not to be afraid of innovation. As a profession, we are rather conservative and sometimes that has stood in the way of desirable reform.

    On balance, I am against the proposal to prohibit a defendant from cross-examining in person. I say "on balance" because I appreciate that a number of good points have been made in favour of such a prohibition. However, in my opinion it would be a mistaken response to the deplorable proceedings two years ago about which everybody in the House knows.

    It is recognised that the principle of a fair trial demands that the defence shall be able to cross-examine the prosecution witnesses. Therefore, in order to prevent the defendant from cross-examining the complainant, it is proposed to take away from him the right to conduct his own defence and give him only one way of being defended; that is, by an advocate. But a defendant may be strongly committed to defending himself. He may be a talented debater and possibly a successful criminal advocate. Or, in a date-rape case—most of the cases of controversial cross-examination will be of that type—the defendant may feel that he knows exactly what did and did not happen and may wish to rely on that first-hand knowledge combined with his forensic talents—real or imaginary.

    I realise that such cases will be few. But that is not a good reason for taking away the right to defend oneself personally. The answer to the problem is that the trial judge should control any excesses, whether of the defendant or of his advocate. That has been sufficiently explained this evening. It is vitally important that, in a case tried by a jury and particularly in a criminal case, the judge should not give the appearance of being hostile to one party; in the sort of case we are discussing, that means hostility towards the accused. It is part of the expertise of a good judge to be able to control the proceedings without giving that appearance. My noble and learned friend Lord Ackner and the noble Baroness, Lady Mallalieu, explained how control is kept and how that can be done without open hostility towards the defendant.

    My second point is that I am not at all satisfied by the argument that Article 6 of the Convention on Human Rights is not infringed provided a defendant can either defend himself or be represented. I am aware of the case in Germany decided by the Court of Human Rights. It is not a time to go into detail; it is not a precedent which I admire in the context of the jurisdictions in these islands.

    If Parliament introduces the proposed restriction, it will be saying, "You will no longer have a choice of ways of being defended. You must accept counsel, even if you conduct your own case." That statement would reduce the defendant's "minimum rights" in Article 6, paragraph 3. Even if we are not offending against the Convention, why introduce a unique restriction in one type of case just because some trials—and in particular, one trial—are not sufficiently controlled by the trial judge? Seminars with advice as to how to conduct a trial are at least as important as seminars on sentencing, and the problem can be easily taken care of.

    8.29 p.m.

    My Lords, I am sure that the whole House will wish to congratulate the noble Baroness, Lady Byford, on introducing a highly valuable discussion. The views expressed indicate what a very difficult subject we are embarked upon.

    The noble Baroness rightly pointed out that the reason for the fall in convictions in this country over the past few years has been due, first, to a lowering of the numbers of prosecutions for rape by strangers—it is very fortunate that the statistics are for once moving in the right direction—and also to the widening of rape prosecutions to marital rape and rape in equivalent relationships. I would add another significant factor for the fall in rape convictions. That is the very considerable increase in sentencing that has happened during the course of my own professional career.

    Rape is a terrible trauma and it is rightly punished by a maximum sentence of life imprisonment. I am sure all your Lordships would agree that a woman has an absolute right to say no. That is her right. No one would for a moment impugn that right. However, the law is that the defendant is convicted on his own state of mind and not upon the state of mind of someone else. It is his realisation of the lack of consent and his recklessness which is punished. It is not the fact that the victim—the complainant, as the noble Lord would have it—has said no without communicating that fact to the person who is the defendant.

    I make no apology for saying that there is a trauma for a man who is convicted on a false complaint and who finds himself imprisoned for, today, a minimum of five years, with the destruction of his career and his family life. That has to be put into the balance. I do think that from time to time those who call for greater penalties and more restrictions and for a fence to be put around judicial discretion sometimes forget that.

    I believe that the increase in the length of sentences has caused complainants to withdraw their complaints in cases where they know the person against whom the complaint has been made. If they do not do that, and if they are called as witnesses, in my experience—I speak as someone who has prosecuted, defended and acted as a judge in rape cases—they will be reluctant to press home the point. There is most certainly a reluctance on the part of the jury where the mistaken belief of the defendant is the issue that is before them. They may find it not at all difficult to decide that the complainant did not consent. It is a far more difficult thing to determine that the man who had a relationship with a woman over a period of years did not realise that her consent had been withdrawn and that he believed, despite her protestations, that this was perhaps just a brief problem within their relationship. It is at that point—I think of a recent case in which I was involved—that juries will acquit.

    The issue is therefore one of intimidation. How are women intimidated from bringing complaints? It is that which the report of the working group addresses. There are a number of ways in which a complainant can be intimidated. The first is by external threats. Perhaps the most important of all recommendations made in the report is recommendation number one whereby special measures would be in place to protect witnesses from external intimidation. But there is also of course—and your Lordships have addressed this—intimidation in the court itself. A case hit the headlines some time ago in which the defendant in person cross-examined the victim. I give the strongest support to the guidelines set out in the case of Brown by the Lord Chief Justice.

    When there is political pressure to restrict the independence and the discretion of the trial judge, there lies danger. On the other hand, I follow the noble Baroness, Lady Mallalieu, in what she said. She would give a right to the judge in a proper case, where it is clear that the defendant is acting abusively when he is representing himself and that in putting forward his case he has purposes other than defending himself, to order that he cease to defend himself and that a lawyer be appointed to put his case for him. That is not a halfway house. To my mind, that seems the sensible policy to follow rather than to say that no one should defend himself in the kind of situation to which the noble and learned Lord, Lord Ackner, referred, where perhaps the word from the husband to his wife might persuade her to reconsider a false complaint that she has laid. I see no breach in Article 6 of the European Convention on Human Rights by the appointment of a lawyer in circumstances such as those I have suggested.

    Intimidation may occur not simply through threats, either externally or within the court, but also through publicity. There is anonymity for a rape victim, but that anonymity may be breached merely by the publication of the defendant's name. Never mind about the position of the defendant, but it may actually cause publicity for the victim if the defendant's name is published. I would certainly maintain anonymity for the victim, but I would return to the position that pertained some years ago that a defendant should also be anonymous until conviction; not simply for his own protection, although that is an important feature, but also to ensure that a victim cannot be identified through a round-about route.

    There is intimidation to a complainant by the way in which medical examinations have been carried out in the past. We need in this country to develop projects along the lines of the Northumbrian Reach Project, which ensures that there are specialist centres removed from police stations where fully trained medical staff can carry out the very delicate examinations that are necessary. There should be attached to those centres non-police counsellors. I go along with the views of other noble Lords who have suggested that Victim Support and other such organisations should play an important part in preventing intimidation through the examination of witnesses, medically and in court.

    There can be intimidation by insensitive police treatment. It is essential that those who are involved in taking complaints—the police themselves—should be trained. That training should include investigation of why a complaint has been withdrawn by the victim. Is it because of intimidation or because the complaint was originally false? The matter should not simply stop at the point when the complainant says, "I do not want this matter to proceed". It should be investigated.

    As regards appearance in court, which can be intimidating, closed circuit television technology has been used effectively in children's cases and ought to be extended to cases of rape. The screens are a less satisfactory way of dealing with the matter. In my experience screens create a very false situation within a court. The use of television is a far more acceptable way of dealing with things.

    Finally, I turn to the point forcefully made by the noble Baroness, Lady Mallalieu. Delay can very often be the real problem. A person who has suffered and has all the problems to carry finds that it takes months and perhaps a year or more for her case to come to court. In that time the agonies of waiting must be very considerable. The report of the working group is an important step forward. I am sure that there is further research and further investigation to be done.

    8.41 p.m.

    My Lords, I, too, thank my noble friend for giving the House the opportunity to debate this matter for it means that tonight the Minister has the opportunity to tell the House how the Government intend to respond to the recommendations in the report, whether they will be implemented and, if so, when. My noble friend spoke with great sensitivity about the human issues involved. Time has certainly been limited tonight despite the extension we have been given, so I shall focus only on cross-examination issues in cases of rape and indecent assault.

    The working group considered that the trauma caused to a complainant being cross-examined in a rape case arose from two factors: first, that the defendant was asking the questions; secondly, the manner and nature of the questioning, whether it was by the defendant or by a barrister. Recommendation 58 states that there should be a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault. I note that the report does not say that legislation is required to implement this. I wonder whether that is correct and whether it is simply a misprint within the report. I would be most grateful if the Minister could resolve that point. The report makes clear that after each recommendation the notation of the letter "L" is put where statutory changes are intended whereas there is no "L" at the end of that recommendation. I was concerned on that point.

    I realise that the report was written before the judgment was given in the case of Milton Brown on 6th May of this year. I have read that judgment in full. The Lord Chief Justice provided new guidelines for judges—that they should take a more interventionist approach and either halt questioning if it seeks to humiliate, or order the installation of a screen, in addition to controlling cross-examination. How confident is the Minister that the new guidelines do enough to protect the victims of rape and indecent assault in the interim? I can only assume that the Government believe that the Lord Chief Justice's words are inadequate because the Home Secretary's announcement about legislation came after that judgment was issued.

    The report agrees with the argument which I put during the course of the Crime and Disorder Bill that Section 34A of the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1991, already provides an exception to the right of a defendant to cross-examine personally in child cases. The working group confirms that it is not aware of problems with that at present and that there is no ECHR case against it.

    I am most grateful to Justice for allowing me to refer to a legal opinion on the matter, which was obtained by it on 11th June from Peter Duffy QC. He concludes that the proposals in the report,
    "are plainly compatible with the Convention and further that retention of the existing right of rape defendants to cross-examine their alleged victims in person would be open to grave criticism for failure to have proper regard to the Convention rights of victims".
    Mr. Duffy provides a careful review of the existing cases and he states that,
    "enactment of the proposals would manifestly be in compliance with respect for the Convention rights of all concerned".
    Could the Minister confirm that the Government agree with that view?

    The working group tackled the issue which I had not attempted to deal with within the context of the Bill: who, if anybody, should represent the defendant if he or she refuses representation? Recommendation 60 states that where an unrepresented defendant is prohibited from personal cross-examination, he or she should be granted legal aid, without means testing, to obtain legal representation for cross-examination purposes only. If the defendant refuses legal representation, then the court should have the discretion to assess whether it is necessary in the interests of justice for the defendant's case to be put and, if so, have the power to appoint a person to undertake this task.

    The working group recognised that in view of a barrister's professional duty to put the case on behalf of his client, there may be difficulties for counsel in conducting cross-examination only. The report maintains that,
    "information about the general line of defence should be available from the defence statement which is required to be produced in indictable cases under the provisions of section 5 of the Criminal Procedure and Investigations Act 1996".
    But Section 5 statements can be very brief; for example, "Every time she says I did it, she's a liar". The defence could have changed since the making of the Section 5 statement and it is possible that there is no Section 5 statement at all.

    If a defendant only refuses representation for cross-examination the barrister would at least have had a consultation before the trial about all the particulars of the alleged offence. But what happens when the defendant refuses representation altogether? The barrister will have no information except that contained in the Section 5 statement. How do the Government plan to resolve that particular dilemma?

    The working group goes on to recommend that in cases of rape and other serious sexual offences the law should be amended to set out clearly when evidence on a complainant's previous sexual history may be admitted in evidence. Several noble Lords have already made very effective reference to that procedure.

    In evidence to the working group the Rape Crisis Centres quote a statement from the Northumberland police that the prospect of facing aggressive, humiliating and irrelevant questioning in court was the largest single factor in making women withdraw their complaint. If this is so, then reforming the cross-examination of rape victims in a way that retains the fairness of the trial for both the defendant and the alleged victim could provide a potent improvement in the way in which rape victims are treated in the criminal justice system.

    The report pointed out that current practice might be improved upon by further guidance being issued to courts, but concluded that,
    "given the experience of the last 20 years in operating section 2 [of the 1976 Sexual Offences (Amendment) Act] the Working Group was not convinced that this option would provide an effective solution".
    Do the Government agree with that assessment?

    All of us throughout this country have a role to play in ensuring that the criminal justice system works as fairly and effectively as possible to protect all the individuals involved—victim or innocent defendant. I believe tonight all noble Lords who have spoken have tried to play their part as best we can to raise the issues fairly. I look forward to the Minister's response.

    8.48 p.m.

    My Lords, this has been a genuinely interesting debate because no one tried to make any partisan points. The range of views that have been expressed indicate the very delicate nature of the matters we are concerned with and the fact that it is very difficult to have a solution which will deal with every possible scenario.

    I think that the report is a masterly document in many ways and I am most grateful to the noble Baroness, Lady Byford, for her graceful commendation of it. However, it casts its net very wide. It deals with vulnerable or intimidated witnesses of all sorts, and it is not of course limited to trials of rape or indecent assault, although I understand entirely that because our time is limited a number of your Lordships have focused on those matters.

    Some of the observations made are general and I am bound to say that I agree with the overwhelming majority of them. I can say specifically that the eagle eye of the noble Baroness, Lady Anelay of St. Johns, has correctly detected an omission by way of a misprint on Recommendation No. 58. The Government's view, which I have expressed publicly in the past, is that there is nothing in Article 6 which would forbid a court in appropriate circumstances to limit cross-examination by a defendant in person. I do not myself believe that the present statutory provision for the protection of child witnesses is in breach of our convention obligations.

    The noble and learned Lord, Lord Ackner, asked particularly about consultation with the judiciary. There were four members of the judiciary, all of whom were nominated by the noble and learned Lord the Lord Chief Justice, who attended special conferences held by the working group, so that the views of the judiciary were undoubtedly taken into account. I will refer to that point again in a moment, if I may.

    It seems to us that it is a basic test of a decent society that everyone should have fair treatment from the criminal justice system. That includes victims, alleged victims, witnesses—who need not always be victims but may be grossly traumatised in a way that we who have not been witnesses may find difficult to understand—and of course defendants. So there is that balance to be maintained. If I may say so respectfully, I think that the Lord Chief Justice in his recent pronouncements was very alert to the balance that has to be kept. I hope I may say without presumption that it is very important that someone in his high office does issue reflective views which have to be put into effect across the wide parameters of the criminal justice system.

    This group was set up very soon after the last election by my right honourable friend the Secretary of State Mr. Jack Straw. I think it has done a very considerable public service and has produced a very considerable piece of work. Of the 78 recommendations, 26, on my tally, will need legislation. Some of the recommendations are not entirely for the Government and it is quite right that they should not be. Some of them will depend on local agencies, local priorities and local responses to particular conditions. That is only right. I do not believe that there is a raft of 78 recommendations which necessarily ought to be at the diktat of central government.

    We have said that we give a broad welcome to these proposals, and that remains our view. This was quite an important working group with representations from all interested government departments. The CPS was represented, together with ACPO, the Local Government Association and Victim Support. As one can see from a reading of the report, it tried to look at all stages of the criminal justice system, from investigation through to trial. That is extremely important, because so often in the past one has had a snapshot view of perhaps a trial, perhaps a cross-examination within a trial, rather than bearing in mind—here I agree entirely with what noble Lords have said—that one needs to look at the alleged victim's interests at the early stages from the time of the alleged offence.

    I also pay tribute to the careful piece of work submitted by the Criminal Bar Association, which rightly recognised that the protections for witnesses, defendants and victims or alleged victims need to be very carefully balanced indeed. If I cast my net a little wider than simply rape and sexual assault, intimidation of witnesses generally and of alleged victims is a growing concern. There have been quite a lot of notorious cases recently where people have been acquitted on directed acquittals in very serious cases indeed, including murder, because the only evidence available comes from a witness who has been so intimidated that he or she would rather suffer what is of course likely to be a fairly moderate term of imprisonment—because that has been the history of it—rather than give evidence and thereafter live in fear.

    The report makes useful points about individuals and communities which may live in fear, terrorised by criminals who are vicious and organised. There is a range of useful practical measures which ought, I think, to form part of a wider debate which we cannot have this evening because of the constraints of time. One needs to remember that witnesses may be vulnerable for all sorts of different reasons. They may just be afraid of speaking in public; they are certainly troubled by the uncertainty of trial dates; they are deeply concerned about delays; and it seems to us that it is a matter of proper management that those who deal with the investigation, prosecution and listing of cases ought to bear in mind that every single participant needs so far as possible to have a degree of certainty about what the nature of the process is and what the timetable is likely to be, with the increasing use of effective pre-trial hearings, when something useful and definitive could be achieved.

    The good practice video which has been mentioned by two of your Lordships was, if I may say so, a very good piece of work which was produced by the NSPCC. I need not declare my interest, because my noble friend Lord Borrie has done that. It was an excellent piece of work, the best I had seen at that stage, because it demonstrated how courts actually work. Certainly I can say from my own conversations that the Bar Council are well aware of its value and have undertaken to give serious consideration as to whether it ought to be a professional obligation on any member of the Bar—I think myself that it ought to be considered by the Law Society also—to have at least studied the video and possibly to have had some training in this very difficult field. After all, the CPS instructs advocates properly trained to prosecute. Should that not be a sanction on those who wish to defend in these cases? It is very important, as has been said, that the Judicial Studies Board should be fully supported in the training which is given—this point was made by the noble and learned Lord, Lord Lowry—about the conduct of trials. It has always struck me particularly—I know this is in the mind of the Home Secretary—that to try a case under the Children Act, a judge has to be nominated, designated and trained, and that does not always obtain, unfortunately, in the allocation of work in these sensitive areas of sexual assault. That is really a question of simple training and management of the judiciary and it does not seem to me that it requires legislation. What it requires is clear signalling and a clear acceptance of the message transmitted.

    My noble friend Lord Borrie referred to the work being done at Penge. That is an admirable house, which I went to quite a while ago now with Sir Stephen Brown, the President of the Family Division, who has subsequently given every support to the causes which my noble friend Lord Borrie identified. It is very important that children should know what is going to happen to them. If a child is a complainant and is told that his case may come on in nine months' time, nine months is a lifetime to a child, as well as to your Lordships and to me. It is quite wrong, I think, if there is a machinery for allowing video evidence to be put into evidence, that a firm, final and definitive conclusion is not arrived at in the overwhelming majority of cases and stuck to, so that a child is not anxiously asking its parents, its helpers or friends on a Friday, "Am I going to give evidence on Monday?" and the answer is, "I am not quite certain yet".

    These are monstrous abuses imposed by a system which is intended to remedy abuse. What my noble friend Lord Borrie has said about delay is absolutely accepted by the Home Secretary and by everyone in the Home Office who has put his mind to this. We can use CCTV in the way that has been mentioned by the noble Lord, Lord Thomas of Gresford. I take the point made by the noble Baroness, Lady Mallalieu, that some immediacy may be lost. That is something that has to be put in the balance.

    This work has pressed on well. It has taken a year or so and I think that it has been time well spent because it will be the bible and the testament for a good deal of further reform. We do not want time to be wasted. We have therefore said that we shall consult until 31st August on the detail of all the proposals. I can assure your Lordships that every single view put forward tonight will be carefully pondered and taken into account before we come to a final decision.

    As I said earlier, 26 of the recommendations require legislation and legislative time. I gather from the temper of your Lordships' House this evening that, if legislative time is required, we shall have co-operative responses from every part of the House. The other recommendations require reflection, imagination, patience and the devotion of resource but, most of all, the devotion of time, thought and energy to the purposes which I believe we all share.

    House adjourned at nine o'clock.