7.12 p.m.
My Lords, I beg to move that the Commons amendment and reason be considered forthwith.
Moved, that the Commons amendment and reason be considered forthwith.—( Lord Simon of Highbury.)
On Question, Motion agreed to.
Motions To Be Moved On Consideration Of Commons Reason For Disagreeing To A Lords Amendment And A Commons Amendment To Another Lords Amendment
[The page and line refer to HL Bill 48 as first printed for the Lords]
Lords Amendment
17 Clause 15, page 8, line 20, at end insert—
("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as—(a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and (b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract,
and paragraph 4 of Schedule 2 to this Act and sections 146 and 148(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 shall be construed accordingly.")
The Commons disagreed to the above amendment for the following reason—
17A Because it is inappropriate to restrict regulations under Clause 15 in this way.
rose to move, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose the following amendment in lieu thereof:
17B Page 8, line 20. at end insert—
("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as—(a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and (b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract.")
The noble Baroness said: My Lords, I beg to move.
The amendment I am moving today is very similar to the one passed at the Committee stage in your Lordships' House. I moved that amendment because, although the Government had indicated that they would bring forward their own amendment to achieve the same objectives as mine, they had at that time been unable to do so. Indeed, subsequently the noble Lord, Lord Simon of Highbury, told me, both in a letter and at a meeting, that there had been certain problems in drafting an amendment. After discussions with Ministers at the end of last week, a mutually acceptable approach was reached in the form of this amendment. I understand that the Government will accept the amendment both here and in the other place.
Moved, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose Amendment No. 17B in lieu thereof.— ( Baroness Miller of Hendon.)
My Lords, I am most grateful to the noble Baroness for the way in which she has moved this amendment. I am pleased to confirm that the Government can accept it in its latest form and will do so here and in another place. It was our intention to replace the power in Clause 17 with a substantive provision. Unfortunately, that proved not to be possible in the time available. We had informal consultations with interested parties which revealed complications. In the end we judged it better to give ourselves more time to deal with the issue.
Nevertheless, I should take this last opportunity to restate briefly the Government's position. We made it clear in the Fairness at Work White Paper and subsequently that the existing law allows an employer and worker, if they wish, to conclude a contract on terms which differ from those of a collective agreement which would otherwise apply to the worker. That is the position now and it will continue to be the position once the scheme for statutory trade union recognition is in place. Of course, collective agreements are increasingly sophisticated and many already provide flexibility in the form of performance related pay and benefits, for example. So employers who have negotiated such agreements may feel no need to negotiate different terms for individual workers. But other employers may wish to do so. They are free to do so and they will continue to be free to do so. The only proviso is that in doing so they must not discriminate in an unlawful way; for example, on grounds of race, sex, disability, trade union membership or non-membership. We believe employees should be protected against dismissal or detriment if they refuse to give up the terms of a collective agreement. For example, it should not be permissible for an employer to say, "Unless you agree to an individual contract and give up the collective agreement, I will see that you are never promoted again". We shall continue to work to draw up regulations to protect workers from such pressures. We agree with the noble Baroness that the mere fact that one worker has received benefits under an individual contract cannot constitute a detriment for those who do not receive such terms. Of course it will remain unlawful to link the granting or the withholding of benefits to a worker's membership or non-membership of a trade union. The Government would have preferred to deal with these matters in the regulations. However, I accept that the point was of particular importance to the noble Baroness and her colleagues and I am pleased that we have been able to reach a mutually agreeable compromise which will allow the Bill to complete its passage today.My Lords, I am grateful to the Minister for clarifying the situation. I ask the House again not to insist on their amendment to which the Commons have disagreed and to agree to Amendment No. 17B.
On Question, Amendment No. 17B agreed to.Lords Amendment
323 After Schedule 7, insert the following new schedule—
("Schedule National Security
1. The following shall be substituted for section 193 of the Employment Rights Act 1996 (national security)—
"National security.
193. Part IVA and section 47B of this Act do not apply in relation to employment for the purposes of—
2. Section 4(7) of the Employment3 Tribunals Act 1996 (composition of tribunal: national security) shall cease to have effect.
3. The following shall be substituted for section 10 of that Act (national security, &c.)—
"National security.
10—(1) If on a complaint under—
it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.
(2) Employment tribunal procedure regulations may make provision about the composition of the tribunal (including provision disapplying or modifying section 4) for the purposes of proceedings in relation to which—
(3) A direction may be given under this subsection by a Minister of the Crown if—
(4) An order may he made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.
(5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security—
(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do anything of a kind which a tribunal can be required to do by direction under subsection (5)(a) to (e).
(7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision—
(8) Proceedings are Crown employment proceedings for the purposes of this section if the employment to which the complaint relates—
(9) The reference in subsection (4) to the President or a Regional Chairman is to a person appointed in accordance with regulations under section 1(1) as—
Confidential information.
10A.—(1) Employment tribunal procedure regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of—
(2) The reference in subsection (1)(c) to any undertaking of a person or in which he works shall be construed—
Restriction of publicity in cases involving national security.
10B.—(1) This section applies where a tribunal has been directed under section 10(5) or has determined under section 10(6)—
(2) It is an offence to publish—
(3) A person guilty of an offence under this section is liable on summary conviction to a tine not exceeding level 5 on the standard scale.
(4) Where a person is charged with an offence under this section it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication in question was of, or included, the matter in question.
(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) A reference in this section to publication includes a reference to inclusion in a programme which is included in a programme service, within the meaning of the Broadcasting Act 1990."
4. Section 28(5) of the Employment Tribunals Act 1996 (composition of Appeal Tribunal: national security) shall cease to have effect.
5.—(1) Section 30 of that Act (Appeal Tribunal Procedure rules) shall be amended as follows.
(2) In subsection (2)(d) for "section 10" substitute "section 10A".
(3) After subsection (2) insert—
"(2A) Appeal Tribunal procedure rules may make provision of a kind which may be made by employment tribunal procedure regulations under section 10(2), (5), (6) or (7).
(2B) For the purposes of subsection (2A)—(a) the reference in section 10(2) to section 4 shall be treated as a reference to section 28, and (b) the reference in section 10(4) to the President or a Regional Chairman shall be treated as a reference to a judge of the Appeal Tribunal.
(2C) Section 10B shall have effect in relation to a direction to or determination of the Appeal Tribunal as it has effect in relation to a direction to or determination of an employment tribunal."
6. After section 69(2) of the Race Relations Act 1976 (evidence: Minister's certificate as to national security, &c.) there shall be inserted—
"(2A) Subsection (2)(b) shall not have effect for the purposes of proceedings on a complaint under section 54."
7. Paragraph 4(1)(b) of Schedule 3 to the Disability Discrimination Act 1995 (evidence: Minister's certificate as to national security, &c.) shall cease to have effect.")
Commons Amendment
323A At the end of subsection (7) of the new section 10 of the Employment Tribunals Act 1996, insert—
("(c) permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.")
My Lords. I beg to move that the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.
The Bill provides that a Minister may direct that an applicant and his representative be excluded from all or part of the proceedings where the interests of national security require it. We anticipate that the power to exclude from all future proceedings will be used rarely and only in the most extreme circumstances where national security interests could not be adequately protected otherwise. Where an applicant and his representative are excluded from proceedings, the Attorney-General, or in Scotland the Advocate General, will appoint someone to represent the applicant's interests. At Third Reading the concern was expressed that if the applicant was excluded from all the remaining proceedings he would not have the opportunity to make a statement of his case. Since it is government policy that such a statement should be able to be made where an applicant is so excluded, I undertook to see what needed to be done to ensure that the regulations would provide for this. This amendment is the result. It provides the vires for regulations to be made permitting an excluded person to make a statement to the tribunal. I am grateful to the noble Lord, Lord Razzall, and the noble and learned Lord, Lord Archer, for bringing to our attention this defect in the Bill. To make the position absolutely clear, the Secretary of State in another place gave a commitment that the procedure regulations will provide that such a statement can always be made to the tribunal where the applicant is being excluded from the remaining proceedings. He also said that in drawing up the regulations he will consult members of the Intelligence and Security Committee. To sum up, the amendment will ensure that a statement of case can always be made where the applicant is being excluded from all the remaining proceedings. At the same time it does not prevent the exclusion of the applicant from all of the proceedings, which will continue after the statements, in those rare instances where a Minister of the Crown has made a direction to that effect in the interests of national security. Accordingly, I hope that noble Lords will agree to the Commons amendment.Moved, That the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.—( Lord Sainsbury of Turville.)
My Lords, this amendment stems from the amendment moved by my noble friend Lord Razzall at Third Reading. We are very grateful to the Government for having taken on board the points mode and for bringing forward this amendment. I am grateful to see the noble and learned Lord, Lord Archer of Sandwell, in his place because I know that he is going to give us a far more comprehensive explanation of this matter than I could.
However. I express our unhappiness at the fact that the amendment goes only some 60 per cent of the way. While we are extremely happy that at least the applicant now has the opportunity to make his case prior to being excluded, there is not much that he can do afterwards if he chooses to disagree. As my honourable friend Alan Beith said in another place,Surely, the suggestion made in another place that members of the commission should be empowered to review the exercise of the Minister's powers was a modest and sensible suggestion and one which this Government of all governments might have felt able to consider. Having stated our unhappiness at that aspect, we are grateful that the first point was taken on board and that this amendment has been brought to us. It is a shame that it is so late in the day that I do not believe that there is anything that I can do about the other part. I am not even sure what the constitutional position would be if I asked your Lordships to do anything about it. So I shall just have to take the hump and leave it at that."We remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense".—[Official Report, Commons, 21/7/99; col. 1256.]
My Lords, it grieves me to disappoint the noble Viscount, but I suspect that if I were to undertake a comprehensive survey of the position at this point it would not improve my popularity in your Lordships' House.
Hear, hear!
My Lords, I seem to have touched a deep note. I thank my noble friend for having listened to our representations. It is not a schedule I would have drafted in a perfect world, which I define as one in which I draft all the Government's legislation. My noble friend has listened and I am grateful for that.
My Lords, we on these Benches are grateful for the movement that the Government have made in this matter. We were obviously very disappointed when, on 15th July, the noble Lord, Lord Razzall, felt it necessary to withdraw the amendment because we considered that it covered the situation better than the amendments we have seen today, particularly because my right honourable friend in another place, the Member for Bridgwater, tabled the same amendment which the Secretary of State pointed out was not necessary because the Government had gone 60 per cent of the way in their amendment and promised to try to go 100 per cent of the way via the regulations. However, he conceded that it was almost impossible to achieve 100 per cent success.
We are sad that we are being offered admittedly flawed legislation as regards the 40 per cent we have not got when the Government, in the person of the Prime Minister no less, on receiving the original recommendations from the Intelligence and Security Committee that my right honourable friend chaired, suggested acceptance and the Employment Relations Bill as the vehicle for the amendment. I am not going to say, like the noble Viscount, Lord Thurso, that I will have to accept it with the hump. We are grateful for the movement made. We would have liked a little more, but never mind.My Lords, I would not want to delay people either on this point. If one looks at the matter carefully, I believe it will be seen that we have far more than 60 per cent. I believe the basic issue is covered of being able to make the statement and that the way in which we are doing it covers the technical point, but that if it was not done in such a manner it might make it impossible to exclude people from the rest of the proceedings. That would not be correct.
As regards reviewing the Minister's use of directional power, I believe that a judicial review is an appropriate remedy for determining whether a Minister has misused or abused his power. A Minister would have to justify the use of his power in an adversarial context and, much more important, such a review would provide an immediate remedy to the applicant if a Minister was found to have acted improperly. As regards the funding of the judicial review that is the mechanism for contesting a Minister's use of his power of direction, where the applicant wishes to be represented, depending on the circumstances, he may be eligible for legal aid. On that basis I ask the House to agree with Commons Amendment No. 323A as an amendment to Lords Amendment No. 323. On Question, Motion agreed to.