moved Amendment No. 199:

Page 44, line 19, at end insert—

""grievance" does not include a protected disclosure under Part IVA of the Employment Rights Act 1996 (c. 18) as inserted by the Public Interest Disclosure Act 1998 (c. 23);"

The noble Lord said: I feel rather like the man who plays the cymbals in a great orchestra who, after all the big instrumentalists have had their big performances and taken some time about it, is called upon to strike a single note. I can only ask that Her Majesty's Government will find that this single note chimes with their own thoughts.

I am grateful for the drafting abilities of those at Public Concern at. Work, the so-called "whistle-blowers'" charity, for the work behind the scenes. We are concerned with the general purpose of Part 3 of the Bill being to require employers to introduce adequate internal grievance procedures and to require employees to use these internal procedures before doing anything else.

The purpose of my amendment is to place no such requirement on an employee who seeks to disclose wrongdoing in his workplace, for example to the appropriate regulator. In other words, the amendment seeks to make it clear that the new statutory grievance procedures should not undermine the disclosure regime provided for in the Public Interest Disclosure Act 1998, which was also inspired by the charity, Public Concern at Work, and which I had the honour to pilot through this Chamber.

Several commentators and lawyers have expressed the view that the Bill before us, the Employment Bill, as it stands requires an employee who wants to make a proper whistle-blowing disclosure to use the employer's internal grievance procedures. I argue that there is a major distinction in the whole purpose and point of whistle-blowing, which is raising a public interest concern that wrongdoing should be investigated, and grievances, which seek redress for oneself for a wrong done to oneself. Chambers Dictionary underlines the distinction by defining whistle-blowing as:

"Giving information (usually to the authorities) about illegal or underhand practices".

Chambers defines "grievance", on the other hand, as,

"a cause or source of grief, a ground of complaint, a condition felt to he oppressive or wrongful, distress, burden, hardship".

At Second Reading I referred to this matter and I was grateful that my noble friend Lord McIntosh said,

"the Bill and the accompanying regulations will ensure that there is no conflict with the Public Interest Disclosure Act".—[Official Report, 26/02/02; col. 1407.]

My amendment to Clause 41, the interpretation clause for Part 3 of the Bill, will clarify the matter across the statutory grievance procedures provided for in the Bill. At present both the National Health Service and the Financial Services Authority are preparing to launch initiatives on whistle blowing, flagging, up the option to make protected disclosures directly to the regulators. As this amendment happens to have come before the Committee today rather than a week or two ago when I thought it might, I am able to quote to Members of the Committee from the April 2002 document of the Financial Services Authority. I shall do so as briefly as possible:

"We will encourage all whistle-blowers to exhaust their internal mechanisms before disclosing to us but we will not refuse to listen to a whistle-blower who does not want to disclose to his employer. It is better that the employee speaks to us than telling no one, or inappropriately making a wider disclosure, e.g. to the police, a Member of Parliament or the media. We think it very important that the whistle-blower who is genuinely concerned about malpractice in the workplace but reluctant, for whatever reason, to blow the whistle internally has a safe alternative. We would hope that firms would share that view".

It would be a pity if, in the light of the Bill before us, employers and employees were being advised that, in raising concerns about wrongdoing in the workplace, public interest disclosures should first have to be raised internally. Whistle-blowing should not, in my view, be confused with grievance procedures. I beg to move.

I rise with some diffidence to support the amendment of the noble Lord, Lord Borrie. That diffidence arises not through not wanting to support the amendment—I very much want to do that. My diffidence concerns something that I mentioned earlier. It seemed to me that, when I supported an amendment from the other side, the amendment did not seem to find favour with the Government. On the other hand, when I rose to say that I did not like the amendment, it immediately found favour. I hope that the noble Lord, Lord Borrie, will not be cross with me later for intervening to support him because I hope very much that the Government will accept his amendment.

The noble Lord, Lord Borrie, quoted something that the Minister said earlier in Committee. With regard to that quote, I made a note that the Minister gave the noble Lord, Lord Borrie, an assurance that both,

"the Bill and the accompanying regulations will ensure that there is no conflict with the Public Interest Disclosure Act".—[Officio/ Report, 26/02/02; col. 1407.]

I was very surprised to see that the Government did not return with an amendment to take into account the point that the noble Lord, Lord Borrie, makes. Therefore, I hope that the Government will be able to find favour with the amendment.

My noble friend raised concern about the perceived effects of the statutory procedures on the ability of employees to make protected disclosures to outside parties in line with the Public Interest Disclosure Act. He believes that the statutory procedures might cause problems or confusion in some instances, requiring employees to raise complaints about wrongdoing with their employer first. I believe that his concerns are centred on Clause 30, which will insert the statutory procedures into contracts of employment as an implied term.

Perhaps I may say at the outset that the Government greatly value the protections contained in PIDA. The Act has generally worked well. We have no intention of weakening or undermining them in an way. Therefore, we shall ensure that the Bill and its associated regulations will not restrict the rights of employees to make protected disclosures.

In general, most cases of whistle-blowing have nothing to do with the treatment of the person disclosing the alleged wrongdoing. For example, an employee may be disclosing some fraudulent practice or other criminal activity committed by his or her employer. In such cases, the complaint cannot be construed as a grievance of the employee. Therefore, the existence of the statutory procedures should not affect adversely the ability of employees to make protected disclosures in those circumstances.

However, there may be other instances where the disclosure does, indeed, concern an individual's treatment. For example, an employee may wish to make a protected disclosure to the Health and Safety Executive about dangerous or unsafe working conditions to which he or she is personally exposed. These cases may not be common. But I recognise that some people might see a tension between the statutory grievance procedure and the PIDA rights.

I think the concerns may rest on the presumption that Clause 30 forces employees to raise with their employer each and every grievance they may have. That is not the way we intend the clause and the statutory grievance procedure to operate. The procedures would simply require employees to take certain procedural actions where they choose to raise a grievance formally with their employer. My noble friend wants us to ensure that we close off all possibility for the PIDA protections to be undermined. I share that aim.

We believe that this matter could be tackled in the regulations. However, there may be a case for addressing the issue on the face of the Bill. This may help clarify the issue at an early stage and assist organisations who are currently operating or devising dedicated disclosure policies. We are therefore minded to bring forward an amendment on Report which would address this issue.

We are very grateful to my noble friend in starting the ball rolling and drafting an amendment to Clause 41. However, we are not sure at this stage whether his amendment adequately deals with the issue. Our aim is to give employees a choice in cases where a protected disclosure is also a grievance. We want to ensure they are free to make the disclosure outside the statutory grievance procedure if that is what they want to do. Equally, we want to give employees the freedom to raise a protected disclosure as a grievance if they choose to do so, ensuring that the grievance is fully explored within the statutory grievance procedure. We have questioned whether the amendment would close off the latter possibility. It would seemingly allow an employer to turn down a request by the employee to apply the three steps to a grievance on the grounds that the grievance also constitutes a protected disclosure.

In conclusion, the Government fully appreciate the point that he has raised. We intend to bring forward an amendment on Report and we will examine my noble friend's amendment as part of that process. I therefore ask my noble friend to withdraw his amendment.

Before my noble friend responds, in view of the fact that there is really one organisation involved in this, could I suggest that we have an assurance that there will be the closest possible consultation with Public Concern at Work so that when the amendment is brought forward by the Government on Report we do not have any difficulty?

Yes. I am very happy to give the assurance that we will have very close discussions on this.

I thank the Minister and I thank my noble friend Lord Gladwin of Clee for his intervention. I was slightly anxious when the Minister began to speak because I thought he was being a little too tentative and might not actually reach the point of saying that he would bring forward an amendment to the actual Bill at Report stage. However, he did do so in due course, as I patiently listened. I am delighted at that and look forward to seeing that amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. Clause 41 agreed to.

moved Amendment No. 201:

Page 45, line 2, at end insert—

"( ) Any questionnaire prescribed by the Secretary of State under this section shall ensure, so far as practicable, that the right of privacy of any other employee of the respondent shall not be breached, in particular by disclosure of his or her name or address."

The noble Baroness said: I would like to speak to Amendments Nos. 201 and 202 together. Clause 42 relates to equal pay questionnaires. After some 32 years since the Equal Pay Act 1970 was passed, the Government have decided that it needs to be strengthened by the addition of a new Section 7B coming after a previous legislative addition, Section 7A. The new section consists of 10 subsections contained in 63 lines of text. Every one of those subsections, every one of those lines, relates to the rights of an employee seeking redress for what the first subsection describes as,

"a person who considers that she may have a claim under section 1".

The Committee will, I am sure, have noticed that the subsection refers to her as "the complainant" and not the claimant. The new section goes on to describe in detail the obligations of the employer to provide information to enable the complainant to investigate and pursue her claim and the remedies available if the employer fails to co-operate and the powers of the employment tribunal to enforce that co-operation.

I am willing to assume that the long experience of the operation of the Equal Pay Act has revealed an impediment to its operation, or to the ability of claimants to be able to prepare their cases, or indeed whether they have a viable claim at all.

My involvement in the cause of promoting the advancement of women in every sphere, and the promotion of women's rights, goes back by coincidence at least as far as the 1970 Act. I am appalled at the fact that, as I have said, 32 years after the passing of the Act women are still paid, on average, only 82 per cent of what men receive when you work it out on average hourly earnings for someone who is working full time. That is an 18 per cent gender gap. Women working part time earn 60 per cent of what part-time male workers receive based on an hourly average wage. That is a gender gap of 40 per cent, which is not acceptable.

However, while welcoming any procedural change that will help to redress that balance—and I hope that they can—I have to point out one major defect in this clause. While assisting an employee to obtain her rights, all of the 10 subsections ignore the rights of her colleagues. None of the 62 lines of text protects a basic right of those colleagues. I refer to the ones she wishes to use as comparators in support of her claim and to the rights of those colleagues and co-workers to have their personal privacy respected—a right enshrined in the Convention on Human Rights, to which this country subscribes, and which are also provided for in the Human Rights Act 1998.

The Minister certified to Parliament—as the Committee will see on the front cover of the Bill—that:

"In my view the provisions of the Employment Bill are compatible with the Convention rights".

However, in the case of Clause 42 as presently drawn, that is not so. Fortunately, this defect can easily be remedied by the adoption of this amendment. I hope the Minister will have noticed that I have not provided for an absolute right of non-disclosure of a fellow employee's name and address because I am well aware that in a small firm the comparator may be just one employee whose identity will therefore be obvious to absolutely everyone. But what has to be avoided "so far as practicable"—and I have used those words in the amendment—is the possibility of identifying that person either to other employees, or to the public, or to anybody else.

In this case the inevitable answer of the Government that the point will be covered by the regulations is not acceptable. First, the object of this amendment is to prescribe what those regulations must contain and not leave that to the discretion of the Secretary of State. Secondly, without the requirement being incorporated into the Bill itself, not in some piece of secondary legislation, the certificate of the Minister as it stands is simply not correct.

So far as Amendment No. 202 is concerned, I have to confess that when I first put this amendment down I did so because it had been put down by my honourable friend the Member for Runnymede and Weybridge in the other place. Although I had seen the amendment, I put the amendment down before I had the opportunity of reading what he said about it in the debate. However, I now see that he conceded that the amendment was defective to the extent that it does not cover the situation of a case going beyond the employment tribunal or the employment appeal tribunal to, for example, the European Court of Justice. If the Minister now concedes the principle of the amendment, or if the Committee decides to accept it, this minor deficiency can easily be corrected by a further amendment which I could introduce at a later stage, or, indeed, the Government could do so.

The principle involved in this amendment is absolutely identical to that applicable to my Amendment No. 201—which is grouped with it and to which I have just spoken—in relation to the questionnaire that the claimant is allowed to serve. The issue is that of the right to privacy of other employees and the right not to have their personal affairs bandied about the workplace or elsewhere. The right of the employer to ensure that a disgruntled employee does not use the rights to information are not used as a foundation for a general fishing expedition or to stir up discontent among other employees who may not be receiving the same pay or the same benefits that the employee who is being used as a comparator is receiving.

During the debate on this amendment in the other place, the Minister suggested that an employer, who was suspicious that a fishing expedition might be being embarked on or who wished to protect the rights of other employees, could withhold the information.

However, new Clause 7B to the Equal Pay Act 1970 provides in subsection (4) that a tribunal may draw any inference which it considers just and equitable if an employer deliberately and without reasonable excuse omits to reply. I ask Members of the Committee to predict whether a tribunal will regard it as a lawful excuse for an employer to decline to answer because he is protecting the privacy of another employee or group of employees. I also ask Members of the Committee whether they believe that an employer would stick his neck out and risk an adverse inference being drawn against him because he is altruistically protecting other employees' rights of confidentiality.

The Minister in the other place tried to draw an analogy with what he called other areas relating to discrimination. If that is so—I am not sure to which areas the Minister was referring—they should he amended as well.

What we need is for the provisions to be upgraded; we should not bring this legislation down to the deficient level in other legislation. Two or more wrongs do not make a right. Once again, I draw attention to the fact that automatically loading the scales in favour of the claimant to the detriment of other employees who are by no means or in any way involved in the dispute is a gross breach of their rights under the Convention on Human Rights.

The Minister has certified to this House on more than one occasion that the provisions of this Bill are compatible with convention rights. In the High Court, a litigant who makes improper use of pleadings, or affidavits, is liable to find himself hauled off by the tipstaff for contempt of court. Instead of producing, as his colleague did in the other place, a series of specious arguments against a simple and entirely reasonable code of practice, I hope that the Minister will accept that all employees' rights are equal and that one employee is not more equal than his or her colleagues. I beg to move.

I listened with interest to what the noble Baroness, Lady Miller of Hendon, had to say, but I find it rather difficult to understand how legislation that is based on comparisons—the equal value legislation has that basis, as does the original Equal Pay Act—and which requires that employees should produce comparators can possibly sit with the kind of amendment that she is proposing. She may argue that the privacy of other employees can be affected, and that may well be so. However, if one is going to get equal pay on an equal footing, it has to be compared with somebody and that automatically means that one has to some extent to lose the privacy of other employees.

May I ask for clarification on the clause? I am concerned about subsection (1)(a) of new Section 7B, which is at line 28. It refers to,

"a person who considers that she may have a claim under section 1 above".

The second lien of subsection (2) states,

"and, if she does so, to formally present her case in the most effective manner".

I raise this because I have personal experience of coming out on the wrong side of the Equal Opportunities Commission by supposedly favouring women over men. My noble friend's amendment was not gender specific and neither is the rest of the clause. Why was it in those instances?

Before the Minister answers my noble friend's question, as I am sure he will, I say to the noble Baroness, Lady Turner, that my understanding, which may be incorrect, is that where there are comparators, they do not have to fill in the questionnaire with the name and address so that the person can be identified. I thought that they were able to compare and find out if somebody was getting equal pay without having to go down that route. That is an unusual route; we are not familiar with it. Unless my information is incorrect—I am sure that the Minister will tell me if it is—that answers the noble Baroness's point.

In a very small organisation where two people do the same job, there would be a difference. I do not know how that would be covered.

The amendment states:

"the right of privacy of any other employee of the respondent shall not be breached",

and goes on, "in particular by disclosure". It actually says "shall not be breached", but that is not possible in the situation that we have discussed with the kind of legislation that we have.

I am grateful for the way in which the amendments have been introduced, and I am glad to acknowledge the credentials of the noble Baroness, Lady Miller of Hendon, in this regard—they go back over a period of years. I add that I will lend her a copy of my book, Women and Work, which is based on research for the Department of Employment in the 1970s precisely on this point. I hope she will acknowledge that I, too, have a track record in this area.

The amendment seeks to ensure that an employee's right of privacy is not breached, specifically protecting their names and addresses. We do not need to go back over that point. Clearly names and addresses are not necessary if the comparators are a number of people, but they might be necessary if it is only one or two people. That is why there is the danger.

There must be a balance between the ideal of complete transparency—we want as much transparency as we can get in order to make the equal pay questionnaire work—and an individual's privacy. That is why our proposed questionnaire will not alter any common law duty of confidence that exists between employers and employees.

The amendment assumes that individuals have a "right of privacy" which must be protected. Unfortunately, it is by no means clear that a general "right of privacy" exists in United Kingdom law, particularly between private individuals. There has been a great deal of publicity recently about the balance between Articles 8 and 10 of the European Convention on Human Rights. That has been about issues of confidentiality rather than about the specific matter to which the amendment refers. However, it is clear that the law has never been entirely clear, and may not be entirely clear even after recent judgments.

There is an alternative. Certain information about individuals is protected by the common law of confidence and the Data Protection Act 1998. Where information is confidential, an employer would be able to disclose the information only if he had the consent of the individual in question, where he had a legal obligation to do so or where there was a strong public interest requirement.

We believe that the common law on confidentiality is the appropriate method to deal with issues of confidential information that might arise in the questionnaire. The common law already works. The noble Baroness, Lady Miller of Hendon, quoted the Minister in the other place as using the phrase, "other areas". The other areas are existing questionnaires for sex, race and disability discrimination.

Exactly the same issue arises there. If we were to change the legislation to introduce the concept of a right of privacy where the other legislation does not do so, we could be creating difficulties. We would expect employers to answer the questionnaire as fully as possible, and not to hide behind a blanket excuse of confidentiality, but we believe it would be very unusual for an employer to disclose confidential information in response to the questionnaire. We would not expect an employer to provide exact details of an individual's pay where the comparator did not consent or where the questionnaire was simply a fishing expedition to obtain details of a colleague's pay. We also think it unlikely that a tribunal would consider that an employer had acted unreasonably simply because he or she had erred on the side of caution and decided that it was not clearly in the public interest to disclose confidential information.

Of course, the tribunal can order the disclosure of this confidential information if the case proceeds formally. This is exactly the same position with the existing discrimination law questionnaires, to which I referred. In those cases, employers might be asked to provide information that is subject to a common law duty of confidentiality. They have to consider whether it is appropriate, in the circumstances, to disclose the information. If they are not prepared to disclose it, tribunals can and do decide whether it is in the interests of justice to do so.

The law of privacy is complex and it is still developing. It is far better to stay within the common law duty of confidence, which has worked well in the other areas to which I have already referred. Incidentally, the Joint Committee on Human Rights raised no objection to the provisions. I hope the noble Baroness, Lady Miller, will agree that that amendment is unnecessary.

Amendment No. 202 requires that all information provided in response to the questionnaire would be treated as confidential and could be used only by the complainant for the purposes of taking a case to a tribunal.

As I have already explained, the questionnaire will not alter the common law duty of confidence. It is far better to stay within the well-established common law duty than to try to construct an alternative version.

The amendment would allow information to be used only in proceedings before an employment tribunal, or an employment appeals tribunal, but a case might proceed to one of the higher courts of the European Court of Justice. The complainant should not be prevented from relying on the information gained in those courts as well. That amendment therefore does not commend itself to the Government.

I wonder whether the Minister can help me a little further. He referred to the other questionnaires on sex, race and so forth. Could he tell me whether names and addresses are included in those questionnaires? That is the point that I was concerned about.

Secondly, the Minister said that the questionnaire was confidential and the information could not be released unless the person concerned gave permission. However, I have read Clause 42 but cannot see where it says that it is confidential. That was the point of my putting the requirement into Amendment No. 202. I would be very grateful if the Minister could elaborate on those two points.

It does not say that it is confidential because it does not need to: the common law of confidence between employer and employee applies and is not affected by this Bill.

As regards the other questionnaires on sex and race and disability discrimination questionnaires, they are all different because they address different issues. However, they address fundamentally the same issue that, in order for a case to work, there have to be comparators, and those comparators should be as plain as possible within the limits of the common law duty of confidence. I do not think there are any cases where there would be a need for names and addresses, but there would be cases where somebody could be identified simply by being the only comparator available. Exactly the same issue arises in an equal pay questionnaire as arises in a discrimination or race questionnaire. I cannot give an over-riding answer which applies to all of them, because they are all slightly different.

I thank the Minister far the extra comments he has made. I know he accepts that I speak with feeling about equal rights for men and women. I accept what he says and will take up his offer of borrowing his book—it sounds to me as though it would make very nice holiday reading.

However, I have to say that I have some concerns about this. I shall read extremely carefully what the Minister has said—I am sure that he means it all very well, but it is just that from where I sit, it appears that problems could arise for other employees. I will read his reply very carefully indeed and then make a decision for another stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 203:

After Clause 42, insert the following new clause—

"EQUAL OPPORTUNITIES COMMISSION

(1) Where, in the light of the answers given by the employer to a question put under section 42, an employer or one or more recognised trades unions recognised by him requests the Secretary of State to do so, the Secretary of State shall consult the Equal Opportunities Commission (the "Commission") concerning the desirability of requiring employers generally to observe the Commission's Code of Practice on Equal Pay in so far as it relates to the pay review process.

(2) Where the Commission so recommends, the Secretary of State shall, after consulting all parties with whom he considers it appropriate to consult, make regulations requiring employers to observe a recommended, or one of the recommended, pay review procedures."

The noble Baroness said: I rise to move the amendment standing in my name and that of my two noble friends. On Friday 8th March, I attended a conference organised by the Equal Opportunities Commission; I was for some six years a commissioner. The EOC is concerned that, despite 30 years of equal pay legislation, there is still a substantial gap between the pay of men and women. Women earn 80 per cent of full-time men's average hourly earnings, while men's average income is almost twice that of women's. The noble Baroness, Lady Miller, has already referred to those statistics.

The effects of unequal pay and income on women include reduced economic independence, greater likelihood of low pay while working and greater likelihood of poverty in old age. Reasons for unequal pay include gender segregation in employment, different patterns of working among women, discrimination within payment systems and undervaluation of women's jobs.

In 1999 the EOC launched a major campaign on equal pay. Among its aims was to persuade employers to examine their pay systems for sex bias, to raise awareness of equal pay issues among the public, to enable those in employment more easily to access their legal rights and to promote the case for legal reform.

The EOC appointed a taskforce which included senior figures from the private and public sectors, from employers to trade unions and experts in pay equality and gender issues. The taskforce took evidence from a wide range of individuals and organisations and produced a set of recommendations.

Although it is clear that the existing legislation, including access to tribunals, has been of great assistance in reducing gender inequality, there are problems about the legislation. Why should it have taken 13 years, for example, to deal with the equal value pay of speech therapists?

There is a continual problem that it is not possible to take class actions; that is, for a union to take a case to a tribunal for a whole group of employees. Test cases of individuals have to be mounted. Therefore, as well as seeking to promote changes in legislation, which is also part of EOC policy, the EOC is endeavouring to promote activity within the workforce by employers and by trade unions.

Hence the campaign for equal pay reviews. This approach involves partnership between recognised unions and employers. I understand that the Government welcome this approach and have nailed their own colours to the mast by deciding to initiate equal pay reviews in government departments.

Many employers welcome the approach as well. In fact, major employers were represented at the conference on 8th March. My own union has started a campaign in line with the EOC's recommendations and has issued a leaflet stating how the issue of wage reviews should be approached.

The amendment is intended to assist this process. I believe it is in line with Government policy, so I hope that the Minister will feel able to accept it, though I must say that we are by no means wedded to this wording at all. My noble friend Lord Wedderburn was responsible for drafting it and he told me this afternoon that he is not committed to this wording. However, if the principle is accepted, we would like to see something rather similar forthcoming from the Government on Report. I beg to move.

It is obvious from what I said in response in the previous debate that I am very much in sympathy with the thinking behind the amendment. The noble Baroness, Lady Turner, says that there is a gap between the pay of women and men, women earning only 80 per cent of men's full-time pay. When I was working in the area in the 1970s, the figure was 73 per cent, so there has been progress but very little or inadequate progress. I had better lend the noble Baroness, Lady Turner, a copy of my book as well. Alas, it is not for sale. Anyway, it is Government property.

Of course, we recognise the good intentions behind the amendment. The trouble is that our understanding of the amendment is that it would require all employers to undertake mandatory pay reviews. However, it is, in line with all of the things that the noble Baroness, Lady Turner, has said, Government policy to encourage and help employers to do so on a voluntary basis. The amendment would allow any employer who had replied to an equal pay questionnaire to request that the Secretary of State consult with the EOC about whether employers should be required to observe pay review procedures set out in the equal pay code. Any trade union recognised by the employer would also be able to make such a request.

There is no threshold requirement, no discretion. As soon as a single employer or one relevant trade union made the request, the Secretary of State would be obliged to consult the EOC. That would take the matter out of the Secretary of State's hands. If the EOC recommended that one or more pay review procedures contained in the equal pay code should be obligatory, the Secretary of State would be obliged to make regulations to require employers to do a pay review.

The pay review model (or one of a variety of models) would therefore become obligatory for all employers. Although the amendment refers to the Secretary of State consulting with interested parties before making these regulations, it seems that the Secretary of State would be obliged to make the regulations even if a large proportion of people consulted were not in agreement. Thus, we would land up making pay reviews through a very unsatisfactory process, where the reply of just one employer, or the request of one employer, could force the Government to require all employers to carry out pay reviews.

We just do not believe that is the right way forward. Equal pay reviews must be carefully and sensitively done. Employers need the tools to carry them out properly—the noble Baroness, Lady Turner, would no doubt agree that many of them do not do so—and we have therefore given the EOC an extra £100,000 to work with employers to develop a pay review model and software to help employers with computerised pay systems to conduct pay reviews. The EOC is piloting this new pay review model with a number of companies and will be publishing guidance before the end of the year. There has been no equal pay review model until now.

The pay review system must be shown to be workable for business and effective for women. It is important that the model takes business into account, its voluntary use is promoted and its impact is fully tested. With out developing the voluntary model and testing its impact, we think it is difficult to assess whether pay reviews are proportional to the problem of unequal pay and whether they will deliver practical benefits.

We consulted on the questionnaire and that received widespread support, with nearly 90 per cent of respondents supporting it. To link the questionnaire with a mechanism that would lead to mandatory pay reviews would risk damaging its credibility. I hope that in the light of the description of what we are doing and the progress that is being made, the amendment will not he pressed.

Before the Minister sits down, perhaps I may clarify something with him. I should declare that I was an Equal Opportunities Commissioner for eight years prior to coming to your Lordships' House. The Minister said that he was sympathetic towards the aims behind the actual amendment and I take his point about the EOC pay review model. However, if we are going to have to wait for the EOC pay review model, would that not be closing the stable door after the horse has gone; that is, after we have debated the Employment Bill? Is there not a way of putting something on the face of the Bill to show the sympathy of the Government towards this kind of review model? If we do not include a provision in this Employment Bill, we may miss the boat because what exactly can we do when we receive the report from the EOC?

We do not know what conclusion the EOC is going to reach as a result of the development of the pay review model and testing it with companies. I do not think we should assume that the result will be a recommendation that there should be a mandatory pay review for all companies. If what we are doing is encouraging a voluntary pay review in those companies where it is necessary—and I do not think we should assume that it will be necessary or desirable in all companies—we will not need legislation in order to implement what the EOC does. Therefore, we have not missed an opportunity if we have not included it in the Bill.

I thank my noble friend for that very full description of the Government's position. That is extremely helpful and I am very gild indeed to have that in Hansard. I note that the main problem with our amendment is its mandatory nature; that the Government agree with what we are trying to do but do not want it to be made compulsory. I note what the Minister said about that and I will have to consider it between now and Report stage. Perhaps I will also consult colleagues at the EOC who currently have this campaign in hand. In the meantime, I am grateful for the explanation that the Minister has given, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 204:

After Clause 42, insert the following new clause—

"UPPER AGE LIMIT

Section 109 of the Employment Rights Act 1996 (c. 18) (upper age limit) is hereby repealed."

The noble Baroness said: The amendment deals with employment rights for older people. The new clause as suggested would remove the existing legislation that denies older people protection against unfair dismissal. It would therefore provide people who work over the age of 65 with the same rights in law as those who are under 65. The right not to be unfairly dismissed does not apply to an employee who has obtained either the normal retirement age, whether it is above or below 65, or in any other case has reached 65. Neither can an employee in such circumstances seek a redundancy payment.

However, there is a growing consensus around the need to enhance employment participation rates among older people. There have been government attempts, with only limited success, to enhance participation of older people by campaigns among employers, and I was involved with some of those some while ago with the Carnegy Third Age Group which was also concerned with increasing employment among older people. The recent debate about pensions provision gives impetus to the argument.

There now appears to be a general acknowledgement that ending age discrimination in the workplace needs legislative action and the authority behind it if it is to be achieved. The Government are currently consulting on the implementation of the EU directive on equal treatment. The new law—expected to be effective no later than 2006—will prohibit discrimination at work against people on the basis of their age and also religion, sexuality, disability and so on. However, I understand that no question has been included in the consultation on the issue of employment rights for older people, and the present position of the Government is therefore unclear.

There are no grounds, either in principle or in practice, for older people to be discriminated against. Sixty-five is an arbitrary age at which people lose important rights. What is proposed in the amendment would result in a strong signal being sent out that the state values the contribution older people can make. It would assist the Government in their positive moves to tackle discrimination against older people in the workforce. It would enable people who wish to, and who are capable of doing so, to carry on working later in life.

It might be argued that during the consultation on the EU directive it would not be appropriate to make this change. That means that even if legislation eventually occurs, it will not happen until 2006, so that older people would have to wait almost a further five years before attaining rights available to younger employees. Employers may perhaps argue that they need the age "cap" in order to manage workforces, to get rid of workers who have become incapable and to promote younger workers, but employers already have the right to dispense with the services of employees not capable of performing the tasks for which they are employed. Everyone should be assessed on the basis of competence and there is no need for age to be a factor.

Many employers are reporting skill shortages in a number of key areas. It is therefore important that the skills and experience of older workers are not lost because of an arbitrary age bar. There is increasing discussion about the possibility of abolishing a mandatory retirement age, and the Government are currently consulting about retirement ages. However, the abolition of a mandatory retirement age is not enough to protect older workers. Without specific rights to protection from unfair dismissal, an employer would still have the freedom to dismiss older workers.

In view of the stated position of the Government relative to older workers, I hope that there would be an indication of support for this wording—at least in principle, even if not this exact wording—as a move in the direction towards protection for older workers. I beg to move.

As someone who is substantially over the age of 65 but is still managing to continue in work, I believe that it will be obvious why I am very much in sympathy with the thinking behind the amendment. Of course, this is an important issue and the noble Baroness, Lady Turner of Camden, is right to say that older people have a valuable contribution to make. However, perhaps I may explain, first, that the situation is not quite as bad under Section 109 of the 1996 Act as the noble Baroness seems to think. Secondly, the Government are very much seized of the issue which is raised by the amendment.

The right to claim unfair dismissal is only one of a wide range of employment rights, the great majority of which, including the right to the minimum wage and the right to paid leave under the working time regulations, are not subject to an upper age limit.

It is generally the case that employees who believe that they have been unfairly dismissed may not be able to bring a claim for unfair dismissal if they have reached the normal retiring age in the undertaking employing them for employees holding their positions, or, in the absence of a normal retiring age, if they have reached the age of 65. No upper age limit applies if the dismissal is for a wide range of specified reasons which are regarded as automatically unfair. Those include dismissal for trade union membership or for asserting a statutory right. I should add that no upper age limit applies for dismissal claims made under sex and race discrimination legislation. While admitting there is still more to be done, that is some modification of the problem.

The Government are currently working on implementing the European Commission's employment directive, which includes provisions to combat discrimination on the new grounds of age, sexual orientation and religion. As a result, we shall be introducing legislation—obviously I shall not say when—to combat age discrimination by employers. A consultation document, Towards equality and diversity, sought views on the implementation of all the new discrimination strands in the directive, including views on retirement age. The consultation finished at the end of March, and we are in the process of evaluating the responses.

Many complex issues need to be addressed and resolved so that the emerging legislation is practical and helpful to employers and employees. I am conscious that many people, including myself and the noble Baroness, Lady Turner, have strong views on the upper age limit to making an unfair dismissal claim. However, the question as to whether to repeal it can be properly considered only in the light of consultation and the work which the Government are doing towards the implementation of the directive. On that basis, I hope that the amendment will he withdrawn.

I thank my noble friend for the sympathy that he has once again displayed towards my amendment. However, I am very sorry to learn that there will be further delay before the amendment, and all that it implies, can be introduced. As I indicated, the consultation process will take some time and it is unlikely that there will be legislation before 2006. That means that older people will have to wait until that time.

I did not say that. I do not want to make any promises, but I said that the legislation had to be implemented by 2006.

Therefore, presumably it could be implemented before then. I thank the Minister very much for that in any event. I do not believe that I can say anything further about the matter at this stage. I said all that I wanted to say in moving the amendment. I am grateful for the assurance that has been given on the issues in relation to which people cannot be dismissed, even though they may be aged 65 or over. But, of course, the main thing is that employers can get rid of people simply by dismissing them at that They can simply say that they have reached retirement age and that is it. That is really rather unfortunate. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Union learning representatives]:

moved Amendment No. 205:

Page 46, line 12, after "take" insert "reasonable".

The noble Baroness said: In moving this amendment, I would like also to speak to Amendments Nos. 205 to 209, 211, 213 to 215 and 218 to 220. This is a series of 12 amendments to Clause 43, which will add new Section 168A to the Trade Union and Labour Relations (Consolidation) Act 1992.

Before I explain my amendments, I have to say that I am surprised by the number of patches and additional clauses that are being added to various Acts by the Bill. I am sure that it would be helpful to employers, employees, their advisors and union representatives alike if the Consolidation Act 1992 could be reconsolidated, taking in all the employment legislation that has been enacted since 1997, so that all of the law can be found in one place. Consolidation Acts are uncontroversial, so long as all they do is amalgamate a whole series of Acts. All that is needed is a good draftsman with a liking for jigsaw puzzle!

We are currently considering the new Section 168A, which will introduce the concept of time off for learning representatives. Since this is a new statutory concept, as distinct from the voluntary system that has operated in some cases hitherto, it is proper that we should smooth off some of the rough edges that currently appear in the Bill. I will deal with them in the sequence in which they appear on the Marshalled List.

Amendment No. 205 would insert the word "reasonable" as a qualification to the amount of time off that a union learning representative may take for the purposes described later in the clause. Without the word "reasonable", the implication would be that the representative could take any amount of time off that he chose. I do not believe that that is being prescriptive; it is merely inserting in the legislation the word that the courts would imply if there ever were a dispute. It is a well known principle that what is reasonable depends on the facts of the individual case.

Amendment No. 206 would insert the words,

"subject to the employee providing appropriate written notice".

It may be that some employers on some occasions will dispense with the notice but Parliament cannot or should not authorise a situation where an employee can simply down tools and go off to act as a learning representative, whether or not that is convenient to the employer, and possibly with insufficient notice for the employer to make alternative arrangements.

On Amendment No. 207, subsection (2)(a) describes some of the activities of a learning representative. All of the activities that are referred to in paragraph (a) are essentially ones that should be conducted at the place of work or, if that is not convenient for some reason, at the union offices. It is not right that work should be disrupted by the employees trooping off to some other location or conducting the training, for example, on a street corner. This, of course, refers to activities being conducted in normal working hours. What employees and the unions do in their own time has nothing to do with the employers.

Amendment No. 208 deals with the purposes for which an employee is entitled to take time off in connection with his duties as a union learning representative. Subsection (2)(b) of new Section 168A, which will be added to the Trade Union and Labour Relations (Consolidation) Act 1992, provides that one of those purposes is for consulting the employer about carrying on such activities. Consultation with the employer is a very desirable course of action and can most certainly lead to co-operation and avoid possible misunderstandings and friction.

One of the matters that should be the subject of consultation is integrating the learning representative's intended activities into the training that is being carried out, or that is intended to be carried out, by the employer. I have often spoken about the effects of the Government's employment legislation on small businesses. In this case, I imagine that it is more likely that larger employers will be affected by these provisions. It will be the larger employers whose employees may have trade union representatives, and it will be larger employers who may be going in for training activities. That is not to say that smaller employers will not have training activities of various sorts but, more often than not, they are likely to consist of sending employees on training courses.

What is important is that, when an employer is conducting his own training—whether that is work-and-skill related or simply involves helping an employee to make up for a lack of literacy or numeracy—that training should not clash with whatever is being offered by the union learning representative. By that I do not mean merely that the two lots of training should not overlap in content. I also mean that the union and the employer should not clash over the time when such activities are carried out by each of them.

I readily concede that there are many aspects of learning or training where consultation between the employer and the union is not merely desirable tut absolutely essential. However, the purpose of the amendment is to underline the fact that neither the employer nor the union is to be able to claim that its activities have priority over the other. It is not intended to limit the activities of the learning representatives because, as the Minister will doubtless point out to me, the consultation does not bind either party to a particular course of action.

Amendment No. 209 inserted into subsection (3) gives the employer the right partially to veto the appointment of the union's learning representative.

I understand that there is a Division in the House. The Committee will adjourn for 10 minutes.

I was speaking to Amendment No. 209 and I think I had dealt with the first paragraph, ending "the union's learning representative". If it does not make sense, the Minister will undoubtedly tell me that I should start again. I said -partially" because the amendment does not prevent the representative being appointed but merely means that an unapproved representative is prevented from having the time and facilities provided for in subsection (1). It is essential that the employer should have some say in who is to have access to his staff. The person appointed might very well be someone with whom the employer is at loggerheads. Considering the influence that the learning representatives will have on the other workers and the amount of time of the business that will have to be given for his activities, it is only right that he should be someone in whom the employer has confidence. It will be noted that the amendment requires the employer to be reasonable and also not to delay approval of the proposed representative.

In Amendment No. 211, I have proposed the deletion of subsections 4(b) and 4(c) because my Amendment No. 212 in my next group sufficiently covers the qualification of the representatives.

In Amendment No. 213, I have proposed in this new subsection to exempt an employer who has obtained and maintained the coveted Investors in People status from this whole concept of learning representatives. That particular status of Investors in People is far from easy to obtain, and to obtain it an employer has to have a substantial training programme both as regards the job employees are required to do and ensuring that the general basic educational infrastructure, if I may call it that—I mean literacy and numeracy—are up to standard.

I do not believe that a union learning representative will be able to provide better training than that which an employer who is an Investor in People can provide. It is therefore unreasonable that, in addition to the expense and effort that the employer has put in in order to obtain the Investors in People status, he should also have the expense and disruption that this particular section will cause him.

In Amendment No. 214, I have proposed to leave out subsection (6) because I believe that my Amendment No. 212—which as I mentioned before is in the next group—requiring a nationally recognised qualification, is more extensive. I do not doubt that the ACAS code would be acceptable, but I do not believe it should be the only qualification.

In Amendment No. 215 to subsection (8), I have proposed that notwithstanding the fact that the clause stipulates that the amount of time off shall be, in a phrase which harps back to my Amendment No. 205, reasonable in all the circumstances, there should be a cap on what reasonable time may be. The amendment does provide for the employer to agree to any extra time off.

Amendment No. 218, the new amendment to the proposed new subsection (2B) at line 41 on page 47, is to insert the word "reasonable" to qualify the time off, and I have explained this previously. I am gratified that the Government accept the idea of reasonableness, as they did in subsection (8). I remember the numerous times during the debates in the Committee on the National Minimum Wage Bill the Government consistently rejected the word on the grounds that it was too prescriptive.

In Amendment No. 219, there is a serious deficiency or omission to subsection (5), which confusingly introduces a new subsection (5) elsewhere. What is wanted is more than mere election by the union, or more if he carries out the duties. To be accredited it is essential that he acquires the relevant qualification himself.

Finally in this group is Amendment No. 220 in which I have proposed the complete deletion of subsection (6). In it the Government propose yet another example, a ruling by ministerial decree. Having produced the Bill after extensive consultation, and after having produced an extensive menu in subsection (2) for an employee to take time off for the purposes of being the learning representative, the Secretary of State now also demands the right to change all that at the stroke of his pen. By any test, subsection (2) is quite comprehensive—I would say totally comprehensive. I cannot imagine what extra needs the Secretary of State could find that are not already catered for. I invite the Minister to tell me what circumstances he believes are not already covered. If he can think of one, I invite him to add it to the subsection right away so that it can be where it ought to be; that is, in primary legislation.

I am not impressed either that the Government are asking for this sweeping power to vary a major part of the Bill under the negative procedure. Let the Minister be specific now if he really has something in mind, otherwise I believe this provision is not needed in the Bill. I beg to move.

I would like to mention one or two reasons why this series of amendments taken together would drive a coach and horses through the Government's clause. The first point I shall make relates to Investors in People. The trade unions have done a great deal of work to support Investors in People. I do not know the statistics off the top of my head but I would not be at all surprised if there was not a very big correspondence between establishments and firms where unions are recognised and those that get IIP status, and that is not surprising. In fact, those matters are not in conflict with each other; they are complementary. For many years in the TUC there was a programme of encouraging firms to go for IIP status as it improves quality, performance in the workplace and so on.

Indeed, as regards some of the benefits of the union learning approach, we have heard consistently over the years that there should be regulatory impact assessments of anything that puts costs "burdens" on business. I do not know whether the noble Baroness is aware of this but according to the data I have the regulatory impact assessment of this clause in the Bill comes up with the following results on a cost/benefit basis. The benefits will rise in a bracket of £70 to £140 million a year as it builds up—and I clarify that is pounds, not euros. I believe these days one has to specify which it is—with costs of £6 million rising to£26 million. The cost/benefit ratio is roughly six to one.

I do not know whether my noble friend the Minister can confirm this but if one looks at the general results of regulatory impact assessments a six to one ratio on benefits and costs is pretty good. I would have thought it was at the high end of the range. The Opposition's job is to be the loyal opposition and so on but it would have been helpful if we could have heard a bit more recognition of the fact that the measure we are discussing can bring considerable benefits. However, the amendment would certainly drive a coach and horses through it. Amendment No. 213, as I read it, simply states that one does not need to comply with the requirements we are discussing if one has IIP status, implying that !IP status would flourish despite such an overriding of union rights.

I have a couple of other points to make. I believe that Amendment No. 210, which is not grouped with the amendments we are discussing, is, as it were, implied in Amendment No. 209. I refer to the right of an employer to refuse the measure we are discussing. Is that right?

It is in the next group.

In that case let me stick with Amendment No. 209 as I will not be speaking again on this matter. Amendment No. 209 gives the employer, if not a veto, a certain right of saying yea or nay to a particular person and so on. As regards union safety representatives—and of course there is a good degree of analogue here, it is not as if this is total rocket science—we know roughly how the system bedded down after one or two teething troubles and the matter we are discussing will bed down in a similar sort of way. One cannot deny the fact that union representatives are elected through whatever complicated arrangements are designed to meet the democratic rules of the particular union concerned. As I say, the matter we are discussing would bed down in the same sort of way as the matter of health and safety reps bedded down. My final point is that it is not the case that union offices are an ideal place to undertake this in every case. In certain parts of the country that would, indeed, be the case, and many union establishments would enable it to be carried on very well on union premises. However, I believe that employers are being over-anxious about the general framework of this approach. It has been thought through fairly well. I hope that the Minister will perhaps reassure the noble Baroness, Lady Miller, that what the Government have in mind here is to help to pick up, and give a benchmark to, the rest of the economy.

There is a paradox in all of this. As the noble Baroness said, large firms are, to use a type of caricature, unionised, and the small firms are not. Statistics show that generally large firms have higher levels of productivity and higher levels of commitment to this type of arrangement. It is not that we do not want small firms to go forward with such representatives. I am sure that the noble Baroness, Lady Miller, would not say that the solution would be to make union learning representatives mandatory in small firms. I would support her if she did say that, but I doubt whether that is her intention.

We must recognise that here we are trying, as we have done in many other areas of industrial relations, to improve the benchmark through a quite ingenious system. But I hope very much that it will act as a benchmark to be copied in other sectors. Thus, the *type of discrimination or two-tier economy to which the noble Baroness alludes would not come about. That would be the arrangement to which other people would need to aspire in their own training arrangements, recognising that European comparisons show that we are not starting with a very good record on training.

I know that that is a Second Reading point, but I believe that many of the implicit assumptions behind some of the remarks addressing the amendments go back to the philosophical problem which the CBI and the noble Baroness have with this issue. It seems that management's right to manage, if I may use an old formulation, is infringed. We should take the opportunity to say that this should be seen as a considerable and positive step in the British economy towards improving our training performance. Everyone agrees that more breakthroughs are needed for that performance to go forward in order to meet the international competitive level.

Perhaps I may say a few words to the noble Lord. The first issue that he addressed was the regulatory impact assessment, particularly with regard to Investors in People. He referred to the benefit being six times the cost—I believe he said that the ratio was six to one. I understand that, but the point that I was making was that it is very difficult to achieve the status of Investors in People. Many companies would like to reach that status but are unable to do so. They invest a tremendous amount of money in the training necessary to achieve that particular award.

I am not sure whether, even with that award, if it was obligatory to have union learning representatives with the costs that those would involve, one might find in the distant future that fewer companies would seek Investors in People status. I make that point only to suggest that such representatives might in some way be excluded. The noble Lord has a different view, which is why I made that point.

The other issue that I wanted to raise in view of what the noble Lord said was that at Second Reading I made the point that union learning representatives, of whom there are already many, who work in companies on a voluntary basis, have been shown to work extraordinarily well. The point is that that is done on a voluntary basis. I always believe that, if you force people to do things, that sometimes does not work very well. Although the amendment seeks to make adjustments to the clause, those adjustments involve simple requirements: that the employer had to be reasonable, that the employer could not delay and that if there was a difficulty with a particular person, that should be taken into account. I appreciate what the noble Lord said. The Minister will no doubt tell us his views.

I hope that the noble Baroness will forgive me if she has already covered this point in introducing Amendment No. 206. The amendment refers to,

"the employee providing appropriate prior written notice".

What does "appropriate" mean?

I suppose that I would be happy if the employer had to provide written notice but, in the circumstances of the case, if the employee downed tools that day and said, "By the way, I'm going off to do that", that would not necessarily be appropriate. It would be appropriate according to the conditions and time when it was said. It might well be that that would need refining and perhaps different words could be added. However, the arrangement is a two-way process and in those companies that operate it on a voluntary basis, it works very well, because all the parties agree and operate in an appropriate way. I use the word to mean, "appropriate for the circumstances of the particular time". It would be difficult for a company that was doing something very involved if an employee were suddenly to drop a notice on the desk saying that he was off in half an hour. I would probably not consider that to be appropriate, but that might vary according to the circumstances.

I had better start by saying that I am informed on this subject as well, having produced training-at-work surveys for the Department of Employment for a number of years, and having done a number of studies on workplace training.

I also say that I am a little surprised at the implicit tone of the amendments. I would have thought that a trade union movement that produced something in excess of 3,000 union learning representatives without any statutory support or an entitlement to time off work or other support, and who operate in the common interests of employers and employees to secure a better skilled workforce, deserves all the support it can get. I believe that that is what Clause 43 does.

I make a final introductory comment about what the noble Baroness, Lady Miller, says about consolidation. Yes, we consolidate from time to time but I suspect that, even in 1992 when the last Consolidation Bill was produced, employers and employees did not read it. What they read was the guidance produced by the department for their use, and that can as easily be produced in relation to individual legislation as to a Consolidation Bill.

Having said that, I have an obligation to respond to each of the amendments, which I shall do. Amendments Nos. 205 and 218 relate to the time off that the union learning representatives may take to fulfil their duties, and to the time off an employee may take to access their services. Both amendments insert the word "reasonable" in relation to time off. Amendment No. 214 relates to the guidance that will be provided on what constitutes "reasonable".

Amendment No. 205 is unnecessary as the restrictions that it seeks to place on a union learning representative's time—I shall refer to them as U LRs— have already in place. Under subsection (8) of new Section 168A, ULRs are already entitled only to reasonable time off during working hours. A union would be restricted from seeking unlimited time off or time off which would disrupt or damage the employer's business. So the amendment serves no purpose.

Amendment No. 218 is also unnecessary. It replicates an existing reasonableness provision. Under subsection 4 of this clause, an employee will be entitled to have time off without pay to access the services of the ULR. It operates by inserting new subsections into Section 170 of the Trade Union and Labour Relations (Consolidation) Act 1992. These new entitlements to time off must therefore be read in conjunction with the existing provisions of Section 170. Subsection 3 of that section already specifies that the time off must be "reasonable" in all the circumstances. Therefore, that is superfluous.

Amendment No. 214 seeks to remove subsection 6 from new Section 168A. That provides for the issuing of guidance by ACAS or the Secretary of State regarding sufficient training. We wish a code of practice to be produced, which will give practical guidance on what constitutes "sufficient training". Removing that subsection would remove the power for ACAS or the Secretary of State to do so. The experience and attributes of individuals seeking to become ULRs will vary greatly. To cover all instances, the definition of "sufficient training" must not be too prescriptive. Removal of the section would mean that in the event of a dispute it would be left to the courts to decide what is "sufficient training". I am sure that Members of the Committee would agree that that would be entirely undesirable. It would be much better if a code of practice providing straightforward, well-researched advice were available to help avoid disputes.

The remaining amendments place restrictions of one kind or another on union learning representatives. Amendment No. 206 seeks to place a requirement on the ULR to notify the employer in writing that they will be taking time off for their ULR duties. The noble Baroness, Lady Miller, has explained that that could be a slip of paper on a desk. However, it places an administrative burden on both the employer and the ULR that is unnecessary. As we have said throughout the passage of the Bill, Clause 43 provides rights that are broadly equivalent to those that are currently enjoyed by shop stewards and other lay union representatives. My noble friend Lord Lea reminded us of health and safety representatives. There is no requirement on shop stewards to request time off in writing to undertake their duties.

Under subsection 8 of new Section 168A, either ACAS or the Secretary of State will provide guidance on reasonable time off rights. What we envisage is that this guidance will closely mirror the code of practice on time off rights for trade union duties provided by ACAS. This code gives guidance on requesting time off and what information they should supply to the employer but does not specify what form the request should take. The approach has no significant problems for employers. There is no reason to believe that problems would arise in the case of ULRs where they have not done so for shop stewards. As I said, there is no requirement for the notice to be in writing but if they all agree that written notice is the most appropriate, there is nothing to stop that.

Amendment No. 209 provides that a ULR's appointment must be approved by the employer for the ULR to qualify for time off. That really is a step backwards. It gives at first instance a veto to employers over a ULR's right to time off. A ULR would be unable to take time off unless the employer had given their written consent to them doing so. By withholding their consent, an employer can prevent a ULR operating, which we cannot accept.

There are currently 3,500 ULRs in place. Agreeing to the amendment would hinder the appointment of more. There would be more workers who would be denied the valuable services of a ULR. The amendment states that the approval cannot be unreasonably withheld or delayed but it does not give an indication of what would be unreasonable. Good employers, who want their workforce to be properly trained and 'who can see the benefits of ULRs, will not withhold their consent. However, bad employers who do not recognise the important role that unions can play in training the workforce and the partnership approach will use this amendment to avoid appointing ULRs. They will, as a consequence, be denying themselves the benefits of ULRs.

We have already provided that the amount of time off must be reasonable in all the circumstances. It is unclear what the amendment would add. Such a condition would lead to disputes and bad feeling in the workplace. It would probably lead to more employment tribunal cases. We want to increase the number of ULRs in place and to do this they need clear entitlements to time off. The amendment would restrict the growth of the ULR network and be thoroughly undesirable.

Amendment No. 215 seeks to place a restriction on the number of days off that a ULR can take each year to undertake their duties. Restricting the time off that a ULR can take to provide advice will reduce their effectiveness and create inflexibility. A ULR needs to be free to take off the time that is necessary to provide advice. However, as I have said, all time off must be reasonable so there are safeguards against excessive amounts of time off.

The regulatory impact assessment indicates that the average ULF: will take 14 days each year—five days' training and nine days to carry out their duties. I imagine that that is where the noble Baroness, Lady Miller of Hendon, took the 14 day-figure from. But these figures are averages. All the circumstances will be different in different cases. Newly appointed ULRs will need more time for training; successful ULRs will have more people coming to them for advice. Some will require less and some will require more. If employers are seeking Investors in People status, they will need to involve the ULR, and the time off that a ULR would need will increase.

What happens if a ULR is responsible for advising, a large number of employees? A limit of this kind would reduce the effectiveness of ULRs and limit the number of people who could be helped.

Amendment No. 207 restricts the location where a ULR may operate. It would mean that, in order to be entitled to paid time off, the ULRs would have to undertake their duties at their place of work or at an authorised trade union location. That would hinder the ULRs and affect the advice that they can provide. There will be occasions where the ULRs will need to go somewhere else; for example, for their own training. What about training at training centres or the local college?

I am sure that the noble Baroness, Lady Miller, does not want us to bar these more formal places of learning: it would not fit in with her general support for training. In any case, what is meant by "authorised trade union location"? Who will do the authorising?

I assume that the intention is to stop ULRs travelling around the country and claiming paid time off. But Section 168A clearly defines the purposes far which a ULR may take time off, and that time off must be reasonable. If a ULR attempts to take time off that does not fall within this, he will not get it. It is likely that most advice will be provided in a ULR's own locality, but there will be occasions when ULRs will have to go further for specialist training, and that would be prevented. What about the health and safety implications of the amendment? What about the situation where the place of work is a building sit? Would that be appropriate?

I turn to Amendment No. 208. Subsection (2) lists the purposes for which a ULR can be entitled to pa d time off. Subsection (2)(b) provides for the ULR to be entitled to reasonable time off to consult the employer about performing these activities. Amendment No. 208 adds to the wording of the subsection by mentioning that these consultations could include discussions about integrating the ULR's work with the employer's training activities.

Many employers have elaborate training and development arrangements to encourage workers to develop their potential. We envisage that ULRs would complement this activity wherever it is possible and in the interests of their members.

The consultations could cover the issues raised by the amendment. Most ULRs would want to know about employer initiatives and plans, and the employer would have an incentive to explore the interaction between his own training activities and those of the ULR.

Therefore, the clause already enables the ULR to be granted time off for consultations on this core subject. I do not see the purpose of complicating the wording of the clause by specifically referring to the issue. If we did, we should have to refer to all kinds of other topics as well.

Amendment No. 213 seeks to exempt employers with IIP status from the scope of Clause 43. We strongly support Investors in People. It is a sign that employers have recognised the need to train their employees. To exempt ULRs from workplaces with IIP status would be not only wrong; it would be perverse.

In order to achieve IIP status, an employer must demonstrate that he has procedures and practices in place that allow for training and learning issues to be regularly reviewed. In many instances, a union will have been heavily involved in helping an employer to gain IIP status. Why should the union then be excluded once it has been gained? It would be strange for a trade union and its ULR to help with workplace training and to work with a partnership to gain IIP status only to have trade union rights and the trade union contribution removed upon its attainment. I suspect that unions would be more reluctant to help an employer to gain IIP status if the amendment were agreed.

We see the role of the ULR as complementing training activities that are already in place, not working against them. I see no reason why the attainment of IIP status should mean that a ULR is no longer necessary. In fact, Investors in People UK, the public body responsible for the IIP standard, does not support this amendment.

Amendment No. 211 seeks to remove subsections (4)(b) and (4)(c) from new Section 168A. There will be occasions when a union member wishes to become a learning representative but has not yet received the training required for the role. Removing these subsections would mean that these individuals would not have the right to time off work to undergo their required introductory training.

These subsections allow untrained ULRs to function as such for an initial six-month period. During that time the ULR would also have the right to undergo the initial training. However, if they did not receive the required training during this six-month period they would no longer qualify for time off.

We have also included a training condition in the new Section 168A and we must ensure that union members are given the opportunity to meet this condition. We need these subsections if we are not going to exclude people from having the opportunity to undertake the role.

Amendment No. 219 deals with the definition of a learning representative of a trade union provided for the purposes of the amendments to Section 170. I am delighted to see the noble Baroness, Lady Blatch, is in her place. I remember when she was a Minister her exercises in speed reading of complicated Government briefs and I can only attempt to emulate her. It is not clear what this amendment is for. I suspect that the noble Baroness, Lady Miller, fears that there is a loophole allowing an employee to have reasonable time off to access a union learning representative who does not meet the training condition. That is not so. An employee only has the right to time off to access a ULR when that ULR is entitled to time off under new Section 168A. That means that he must meet the training condition.

Finally, let me turn to Amendment No. 220. This amendment seeks to remove the order-making power. ULRs have been around for about five years. They are relatively new creations and it is possible that their functions could change over time. We need to ensure that we have the powers to deal with any future changes and so we have included this order-making power in subsection (6). It is not intended as a means to establish collective bargaining rights for unions over training. We have always made it clear that it is drafted to ensure that no collective bargaining rights are assigned to unions or to the ULRs they appoint.

Bargaining about training and learning remains an entirely voluntary matter. Employers and unions are free to engage in such bargaining only where they both wish to do so. We intend to apply the affirmative resolution procedure and that is what is achieved by Amendment No. 221, which I hope we shall deal with shortly. I hope that goes some way to relieving the concerns of the noble Baroness, Lady Miller.

That was a bravo performance by the Minister. When one puts down a big group of amendments the Minister at least knows what the amendments are and has time to prepare his speech. When the Minister comes back with a bravado performance like that—I started to write things down, but I am afraid I got lost. I shall obviously read very carefully what the Minister had to say about all of those matters—I was disappointed—

The word is "bravura".

What did I say?

Bravo.

I was trying some speed talking to try to match the Minister and got caught up in it. I thank the noble Lord who corrected me. I was really disappointed when the Minister started off by saying that he did not appreciate the tone of my amendments.

The implied tone.

That is much gentler and nicer, if I may say so!

In my next group of amendments I shall say a little more about what I shall just touch on now in answering the Minister. At Second Reading I discussed union learning representatives and said how successful they were when they operated on a voluntary basis. I will come back to that in a moment. I was trying to put down some markers as regards having union learning representatives on a non-voluntary basis. Once they become enshrined in legislation that is enforced on companies that are not ready for it, or whatever, they may not be as successful as when they operated on a voluntary basis. I was not saying that we should not have them but simply making the point that difficulties may arise in certain circumstances.

In the other place the Minister was asked whether there was an organisation that would welcome union learning representatives. I believe that the answer was the CBI. But that was a sort of half answer as the CBI did welcome them provided they were introduced on a voluntary basis. However, some other organisations did not welcome them. One could look at my amendments in a constructive way and say that for five years we have had them—I believe that we have 3,000 of them—and they have worked well because they were accepted and they were voluntary. The position will now change. I refer to phrases such as "the employer should be given notice", or, "it should be reasonable". I shall read carefully what the Minister said. As I said, and I shall say it correctly, it was a bravura performance. I beg leave to withdraw the amendment.

Before the noble Baroness sits down, could I clarify one of the points she has made repeatedly, which concerns the benefit of having voluntary arrangements rather than statutory arrangements? We have been living for three years since the 1999 employment Act with statutory trade union recognition procedures. If you do not have a voluntary arrangement and there is still a demand for recognition, you go to the central arbitration committee and, ultimately, if the matter is pressed that far you have a ballot. If 40 per cent of those entitled to vote, vote yes, you gain recognition.

There was an understanding between the TUC and the CBI that, if you are going to do that, that is the best way forward. However, a great proportion of that iceberg is under the surface—I refer to the voluntary aspect—and on the top of it you have a little part which is statutory—that is what I call the bench-mark. I ask the noble Baroness to reflect on the fact that in one respect—this is a semantic point—trade union recognition is almost like recognition of Palestine in that it is a voluntary matter but one which is at the same time subject to some pressure. However, once the matter we are discussing settles down—it is often difficult to introduce it—it is operated on essentially a voluntary basis. Perhaps the noble Baroness would reflect on the fact that this sharp distinction between what is done voluntarily and what is done compulsorily, as it were, is being somewhat overdone in this debate.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 210:

Page 46, line 30, at end insert "and

(c) the employer does not object to the provision of a union learning representative"

The noble Baroness said: In moving Amendment No. 210, I wish to speak also to Amendments Nos. 212, 216 and 217. They all relate to the introduction of what are called learning representatives into the workplace.

I begin by hastening to assure Members of the Committee opposite that these amendments are most certainly not a bit of union "bashing". The noble Lord, Lord McCarthy, is not in his place at the moment but I believe that he asked at Second Reading whether words of kindness such as "conciliation" ever passed the noble Baroness's lips. As a preface I wish to say that they often pass the noble Baroness's lips. It is important to get that matter into context. 'The only reason I did not answer the noble Lord before was that I had already withdrawn the amendment.

On the contrary, as I said when I mentioned this part of the Bill at Second Reading—I refer to the fact that this is not union bashing—there are already, I believe, 3,000 learning representatives. Where they have been established on a voluntary basis—I come back to the point raised by the noble Lord, Lord Lea of Crondall—there appears to be no problem whatsoever and they are welcomed. However, the key phrase there is "on a voluntary basis", and Amendment No. 210 specifically deals with where the employer does not have any objections at all. When the Secretary of State was asked in the other place whether any employers' organisation supported the idea of learning representatives—and I mentioned this a moment ago—she incorrectly claimed that the CBI did. I will now quote the CBI correctly. It states:

"The CBI supports the concept of learning representatives, but the right to appoint union learning representatives without the employer's agreement is unacceptable".

I would like to return to another aspect of the CBI statement in a moment. The fact is that very many of the provisions of the Bill add to the costs to be borne by the employer. This in particular is one of them. An employer is in effect bound to pay for the learning representative, and for his time and that of the employees, while he is legitimately performing his functions.

The Employment Relations Act 1999 gave the unions enhanced rights to represent employees whether the employer wanted to recognise the union or not. In this next step the unions are seeking further access to the workplace by the insertion of learning; representatives whose activities will, of course, eat into the working time of the employees. I am not saying that it would necessarily be bad—Members of the Committee opposite have pointed out that training is a very good thing. I am just making the point that it is something in the balance and in the equation that should be considered.

I do not know that the Minister will like my next phrase because the Government shy away from calling learning representatives "teachers". However, they can serve a useful function to make good the deficiencies which often result in school leavers entering the workplace bereft of the elementary skills of numeracy and literacy. That is, of course, one of the functions in which the union learning representative could be involved. It is a pity that we should even have to consider—although we clearly do—that that function might very well be necessary, but there you, c'est la vie, that is the reality.

In my own experience as an employer—and I accept that it will happen—young girls were coming to me for clerical jobs, and although they could read and they certainly could write, it was quite extraordinary that they did not know the alphabet. And I found it practically impossible to teach them how to work on the telephone because they could not look up telephone numbers. The only way they could find a number was to get back to the operator, which was quite a sad reflection.

I also believe that there are many jobs where, with the virtual breakdown of the apprenticeship system, new employees are often thrown in at the deep end and they are unfortunately left to pick up the necessary skills on their own. In such cases the presence of a learning representative could be beneficial to both the employer and to the employee. However, as the CBI points out, it has to be for the employer to decide what degree of training is required for his particular employees, and not for the union to say to an unwilling employer that he will have to do A, B or C. Neither will it be fair to one who cannot afford the costs and loss of competitiveness that the imposition of a learning representative might entail.

Amendment No. 212 requires a learning representative to acquire some nationally recognised vocational training or teaching qualification. As a transitional measure, and to anticipate possible objections from the Minister, I have proposed two separate measures. First, I have suggested an initial period of one year from the passing of the Act for existing learning representatives and those who are likely to be appointed shortly to acquire the necessary qualification. Secondly, any new learning representative will have six months from his appointment time to acquire the qualification.

It will be noted that I have not prescribed the exact form of the vocational training or teaching qualifications that the learning representative will have to acquire. I am glad to see that the noble Lord, Lord Sainsbury, is in his place because I can comment that he recently sent me a video in which he starred, promoting the work of the United Kingdom Accreditation Service. From this I believe there is ample scope for any learning representative who wishes to acquire the necessary qualifications to find a reputable organisation to provide him with them. The Minister should note that I said he starred in his film. I am not sure whether everybody had the opportunity to see that film, but it was very instructive.

I am sure it is naïve of me, but I cannot imagine that the Government will oppose this amendment because the implication would be that they do not care if unqualified representatives are foisted on employers and on the workers whom they are supposed to be helping alike.

Amendment No. 216 limits the number of learning representatives to one per work site and the reason is self-evident. In the case of a small or medium-sized enterprise, even one representative might be a financial burden. More than one, with competing agendas and calls for time to carry out their functions, will be severely disruptive.

In the case of larger businesses, there is the problem that there may be several unions involved and the employer could be faced with the consequences of inter-union rivalry. If there is more than one union, they should get together and work out which will carry out the functions of the learning representative or persuade the employer that, as different skills are involved, their function should be divided in a way that is agreeable and convenient to the employer.

Amendment No. 217 is also self-explanatory and I trust the Government will accept it as a constructive correction to an obvious omission from the draft Bill. Subsection (11) defines a learning representative as a person who is appointed or elected by his union. The other essential qualification is that he should have the qualifications laid down in subsection (4). Those qualifications are those that the Government themselves stipulated in paragraphs (a), (b) and (c), apart from the additional one that I just proposed in Amendment No. 212. It is, I understand, a rule of legal construction that if a later provision conflicts with an earlier provision, then the latter one prevails. In this case, as drawn, subsection (11) could arguably be said to override subsection (4); my amendment simply makes clear that it does not. I beg to move.

I want to make a couple of points on the procedures involved. There may be a misunderstanding on how the system would work in practice and this is illustrated by the remarks towards the end of the introduction by the noble Baroness, visâ-vis inter-union matters and so on.

In practice, whether it is a voluntary agreement or, as I pointed out a few minutes ago, one that derives from the statutory procedures of recognition, there would be either a procedure agreement which was voluntarily arrived at, covering the areas of the recognition or, at the ultimate, the default procedure of the central arbitration committee.

In either case one would have to identify the various elements of the procedure agreement. As I think it would be translated on the ground in consolidation of all these issues under the trade union recognition, there would be the addition of this training element in the procedure agreement. It is a matter of axiomatic training in practice that if these things are to be consolidated into the procedure agreement—not the wages agreement, but the procedure agreement—it would determine who would be involved in representation of the employees on any particular question. One can, therefore, put the noble Baroness's mind at rest on that particular point.

I make one other remark. The noble Baroness seems still to be taking as axiomatic something that is the reverse of the case; namely, that this is going to undermine the firm's competitiveness. The noble Baroness has stated this so many times now that I feel I must pick it up. The regulatory impact statement is precisely intended to address that kind of question and it says the opposite, by a ratio of six to one. Therefore, we are being told that we have to look at the new world globalisation in a pragmatic, empirical way, based on the evidence and so on. That is what we are trying to do.

I want to make one or two comments on what the noble Lord, Lord Lea, has said. One important thing that the House of Lords does is to scrutinise measures very carefully. Many of the things that we have been scrutinising over the past few sessions are matters that were not even considered in the other place; This one was, but many were not. There is enormous value in the fact that we scrutinise such matters and that we tease out each other's thoughts and so on. Therefore, I am not saying that I disagree with everything that the noble Lord said. I was very grateful to him for his comments. They may illuminate my thinking on certain matters in the future. I put: it no stronger than that.

The noble Lord returned to the issue of the regulatory impact assessment and the benefits arising from it in a ratio of six to one. Unless I am totally mistaken in relation to the regulatory impact assessment, I assume that that has been carried out. The Minister will correct me if I am wrong, as I may very well be, with regard to cases where there is already a universal learning representative; that is, in relation to voluntary cases.

I was trying to make the point that what one may get out of 3,000 voluntary ULRs in situations where the employer, the employee and everyone else likes the arrangement may not necessarily be the same in every case. The Minister may be right that competitiveness has not been affected, but that may not necessarily be so in all cases. I considered it necessary to scrutinise that point, to investigate it, tease it out and talk about it. I am sure that the Minister, if he is able to do so, will correct me if I am wrong, and we shall see how we proceed.

I want to add one sentence. Competitiveness has been affected, and it has been affected positively.

Perhaps I may make one comment in relation to Amendment No. 216. As the noble Baroness said, it is good to exchange knowledge in these discussions. The amendment refers to,

"no more than one learning representative".

When the noble Baroness introduced the amendment, she said that difficulties may even arise between trade unions. In my experience as a trade union negotiator, which is nowhere near as wide as some of my colleagues on this side of the Committee, I never had to deal with differences concerning learning representatives and training. Differences did occur in relation to recognition agreements but not in relation to the training or learning representation.

I thank the noble Baroness for that comment. We are talking about a new concept. At this stage one would hope that in a new organisation where the arrangement is voluntary it would probably work very well. However, that may not necessarily be the case; the arrangement may or may not work satisfactorily.

The noble Baroness, Lady Miller, introduced her remarks by saying that she was not union bashing, and I have to accept what she says. It is strange, therefore, that, when she referred to union learning representatives at Second Reading, she talked about having a curious image of unions infiltrating the workplace. We are not legislating for infiltration; we are legislating to ensure that unions can do even more than they do at present in workplaces where they are already recognised.

As I said in responding to the previous group of amendments, union learning representatives represent the modern face of trade unions. They provide important services to individual employees. They help employers to improve the take up of training and learning opportunities, and they produce a substantial net gain to the economy, as the regulatory impact assessment showed, as my noble friend Lord Lea reminded us.

The amendment would continue the existing veto which employers have over union learning representatives. It would restrict the positive role which unions can play in helping to address skill and learning deficiencies. It would hold up the development of the union learning representative system, denying individuals and, of course, employers the benefits which union learning representatives can bring. At present there are approximately 3,500 ULRs in a small fraction of the workplaces where unions are recognised.

The numbers are growing slowly by about 500 to 1,000 a year. If we extrapolate that, we would have around 10,000 in place in eight years' time. According to TUC estimates, unions believe that they could realistically appoint and support more than 22,000 representatives by that date if they were allowed to do so. That is a substantial difference.

The noble Baroness, Lady Miller of Hendon, says that there will be a difference between those who are appointed voluntarily and those who might be appointed if this clause applied—the compulsory side of what we are proposing is damaging.

I do not believe I said there will be; I said there may be.

I accept that. I accept that that is what she said, but I believe that in fact the change will be in the other direction.

The fact that there are no statutory entitlements for time off restricts the activities of union learning representatives now. About a third of union learning representatives do not receive paid time off for training in their role. About a half do not receive paid time off to carry out their workplace duties. That has hindered the contribution which union learning reps can make and it has constrained the expansion of the network. I suggest that the implementation of the clause will not only increase the number of union learning reps but make them more effective.

I believe that the noble Baroness, Lady Miller of Hendon, will recognise that our country's performance on skills and learning is not outstanding. Independent research has shown that ULRs bring real benefit to the workplace. We want to release this potential; we simply cannot afford to do otherwise. She believes that our approach undermines partnership but we do not think that way at all. We believe we are widening the role of the modern union, involving the union in the wider partnership of agenda, of improving workplace performance and enhancing the employability of the lower skilled. If we stifle the network, we are stifling the ability of unions to help individuals and businesses adapt to change.

The amendment will give the employer a say in the union's choice of its union learning representatives. It would allow an employer to say that he would object to time off for Mr A but not for Mrs B. We believe this is not just a mistake but actually improper. It would threaten the independence of free trade unions. Employers should not interfere directly or indirectly in the internal affairs of trade unions. Nobody contests the notion that shop stewards should have time off to engage in collective bargaining. Nobody contests the idea that union safety representatives should have time off. These rights to time off are not, and should not be, contingent on the employer's approval of the representative in question. We feel the same way about union learning representatives.

Amendment No. 216 would limit the number of union learning representatives that a union can appoint at any one workplace or establishment. We do not believe that this is necessary or desirable. The time off rights for union learning representatives are not the only time off rights for trade union representatives. There are time off rights for shop stewards and other lay representatives and the ULR clause is very closely based on those entitlements, as for health and safety representatives. However, none of them includes any limitation on the number of representatives at any workplace establishment and it is left to the unions to appoint the number that they believe is appropriate.

It is not in the unions' interests to create complicated organisational structures. Unions are by and large sensible and pragmatic organisations that have no interest in appointing union learning representatives who will not have enough to do. Anyway, employers are not interested in the number of union learning representatives. They are interested in the total amount of time off that they take and the associated circumstances in which it is taken. There is no need to specify a particular limit on the numbers involved. There are safeguards to ensure that the total amount of time off is not excessive, not the number of numbers, as it were. Those safeguards are in subsection (8) of new Section 168A. They have to be "reasonable in all the circumstances", and there will be a code of practice to give guidance on the practical application of those time off rights.

The amendment is also undesirable because it would restrict the flexibility with which unions could apply the time off rights. There may be benefits where several union learning representatives operate in tandem, each specialising in one aspect of the ULR task or a particular occupational category. Why rule out that in legislation? Why leave it to the employer's discretion to decide whether such flexibility is required?

Amendment No. 212 seeks to ensure that 12 months after the Act has been introduced only those individuals who have obtained a nationally recognised vocational teaching qualification, or who are training for such a qualification, will meet the training condition. We do not believe it is necessary or desirable that ULRs should be obliged to obtain formal qualifications. We have deliberately avoided being too prescriptive in defining the training condition. We did not want to discourage individuals from volunteering to become ULRs by putting obstacles in their way, and we do not think it is appropriate to treat all individuals as if they were the same, which they clearly are not. We could exclude highly suitable people, discouraging those who never achieved any qualification and who would be intimidated at the prospect of having to undertake such a formal step. Some of the most effective ULRs are those who come to learning late or who have, or have had, basic skill needs themselves. They can lead by example. They are unlikely to he encouraged to become ULRs if they have to achieve formal qualifications in order to be recognised.

In the New Year's Honours List this year, one such ULR, Tommy Dawkins from the Ceramics and Allied Trades Union, was honoured. He was encouraged to become a ULR after admitting to and dealing with his own illiteracy. It is inconceivable that he would have done so had he been expected to pass exams or undertake a vocational qualification. So we do not want a prescriptive definition of "sufficient training".

Amendment No. 217 adds extra wording to subsection (11). It provides a definition of a learning representative for the purposes of the new section. The amendment would add to this definition by requiring that a learning representative should be a person who is "qualified". The noble Baroness, Lady Miller, may think that this is consequential to Amendment No. 212. I have already explained why the requirement for a formal qualification is not acceptable, but there is no need to make a consequential amendment in subsection (11). There is already a requirement in subsection (3) that a ULR must meet the training condition in order to qualify for time off entitlements. The amendments are not only unnecessary but, I am afraid, they could be quite damaging.

Before the Minister sits down, I seek some clarification. I must confess that I did not know what ULRs were. Clause 43 contains new Section 168A, which is entitled:

"Time off for union learning representatives".

Subsection (2)(a) of that new section refers to ULRs,

"carrying on any of the following activities … analysing learning or training needs … providing information and advice about learning or training matters … arranging learning or training, and … promoting the value of learning or training".

You would need to have some training to be able to do that. You would need some qualification to be able to analyse.

I raise a second point about the Minister's response to my noble friend. It seems that you can have as much time off as you want provided that it is not excessive. Who will define "excessive"? It does not seem that the employer would define it.

The other point that struck me is that there is no limit on the number of ULRs. Four or five members of staff at not a very big location could all become ULRs. The Minister says that my noble friend's amendment is too prescriptive but I do not believe that the Bill is prescriptive enough.

I am asked to answer three points. First, is it desirable for union learning representatives to have training qualifications? To have training is certainly desirable; that is provided for and we expect them to have training in doing their job. There will have to be a wide range of training for different purposes. Those who are encouraging their colleagues to undertake basic skills training will want that particular kind of training. Those who are looking for other kinds of training that are relevant to the workplace will have different training. We agree about training but it does not follow from that—I hope I gave enough examples to show this—that they must have formal qualifications.

The second question concerned the definition of "excessive". I do not think that you can define that. It is in nobody's interests to take extra time off to do work that is not necessary or not valuable. It has never been a serious problem in industry, so far as I know, that there is no definition of what is excessive for shop stewards or health and safety representatives. They do different jobs in different places and you cannot be prescriptive about it. The same is true of numbers. My answer to the noble Baroness, Lady Miller, was that there should not be a restriction on the number of union representatives but there should be an ultimate constraint on the number of hours taken off, which is quite different. There the restriction of not being excessive does apply.

I want to make a few points. I will let the Minister know now that I intend to withdraw the amendment, but before I do so there are a few points that I want to make and I shall read very carefully what has been said. Twice the noble Lord, Lord Lea, happened to say that the competition has improved—I think they were the words he used.

Competitiveness.

He said that competitiveness improved. I think the Minister talked about many of these things being very successful and have improved results and so on and so forth. If that is so, why it is that we still have so few union learning representatives on a voluntary basis? Companies want to do well and if they find that a neighbouring company which has one of these systems in place is becoming more competitive, is doing better, is having better results, they may hasten to get involved.

The Minister started by saying that I had said I am not in for union bashing, and unless I am very much mistaken, a note came up from behind recalling what I said. Without the Minister knowing that I was going to say that, he had it at his fingertips. That is even more of a bravura performance.

Finally, before I withdraw the amendment, the fact remains that one does not know what is going to happen when the Bill becomes law and companies have to impose it. The Minister indicated that the Government did not want it to be too prescriptive; they do not like the idea of the word "reasonable"; and they do not like the fact that the employer has to be content and happy as well. They are not prepared to put any limit on the number of union learning representatives, and they are only going to ensure that the hours are not excessive. They are not prepared to say what is excessive.

I say to the Minister that I am happy to withdraw my amendment, but I think he should look again at some of the measures and see whether there is a way that they can ensure that they will definitely work when the Bill becomes law. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 221:

Page 48, line 10, after "order" insert "made by statutory instrument"

The noble Lord said: I rise to move Amendment No. 221 and speak also to Amendments Nos. 222 and 223.

Amendments No. 221 and 222 deal with the order-making power in Clause 43. They make this order-making power subject to the affirmative resolution procedure.

Subsection (2) of the new Section 168A defines the range of union learning representative functions However, it is possible that, with experience, these activities might change and evolve. They may well develop in ways which are outside the purposes of union learning representatives as defined by subsection (2). For example, it is possible that ULRs might become more involved in organising childcare arrangements for workers who are undergoing training, and that activity is not caught by subsection (2)(a)(iii) of new Section 168A.

We would want to be able to respond if the ULR's job evolved in an unforeseen direction in the future. Hence, subsection (6) of the clause provides an order-making power to vary the purposes for which a ULR is entitled to time off. This order-making power is currently subject to the negative resolution procedure. We now think that the affirmative resolution procedure should apply to orders made under this power. This should ensure an adequate level of scrutiny. Amendment No. 223 has been tabled to ensure that the issuing of a code of practice under Clause 43 is subject to the affirmative resolution procedure.

Clause 43 provides for codes of practice on reasonable time off and sufficient training to be produced by either ACAS or the Secretary of State. If the codes are issued by the Secretary of State, they would be subject to the affirmative resolution procedure. However, that is not necessarily the case if they are issued by ACAS.

ACAS already produces a code of practice which provides guidance on the existing time off rights for shop stewards. This code has worked well and reduced the scope for disagreement. It is probable that ACAS would produce the corresponding code on the time off for ULRs. ACAS could meet this remit by producing a single code covering time off rights for both shop stewards and ULRs or a completely separate code just for ULRs. In the latter case, the code would be subject to the negative resolution procedure and therefore not debated.

As I have said, the guidance on sufficient training can be produced by either ACAS or the Secretary of State. If the code of practice were to be introduced by ACAS, it would be subject to the negative resolution procedure.

We think that both Houses should have the opportunity to scrutinise and debate these codes. Amendment No. 233 ensures that, if ACAS produces one or both of the codes, the issuing of the codes would be subject to the affirmative resolution procedure. I beg to move.

The Minister will not be in the least surprised when I say that I welcome these amendments. We were very keen, as I mentioned at Second Reading, that many of the orders should not be by the negative resolution procedure but by the affirmative resolution procedure. I am delighted that the Government have agreed.

On Question, amendment agreed to.

moved Amendments Nos. 222 and 223:

Page 48, leave out lines 13 to 15 and insert—

"( ) No order may be made under subsection (3) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.""

Page 48, line 18, at end insert—

"( ) For section 200(3) there is substituted—

"(3) A Code containing practical guidance

(a) on the time off to be permitted to a trade union learning representative in accordance with section 168A (time off for training and carrying out functions as a learning representative),

(b) on the training that is sufficient to enable a trade union learning representative to carry on the activities mentioned in section 168A(2) (activities for which time off is to be permitted), or

(c) on any of the matters referred to in section 199(2),

shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.""

On Question, amendments agreed to.

Clause 43, as amended, agreed to.

moved Amendment No. 223A:

After Clause 43, insert the following new clause—

"TIME OFF FOR STUDY

(1) A qualifying employee may apply to his employer for time off during his working hours for study if—

(a) the study is relevant to the work he is doing and promotes his understanding of and value in that work,

(b) his purpose in applying for time off is to enable him to prepare and sit examinations which lead to a qualification of a level which satisfies conditions laid down by the Secretary of State, and

(c) the employee has undertaken sufficient study in his own time to satisfy those supervising his studies that he would benefit from time off for further study and use that time to good effect.

(2) An application under this section must—

(a) state that it is such an application,

(b) specify the amount of time off required and the dates on which it is proposed it begin and end,

(c) explain what effect, if any, the employee thinks his taking this time off would have on his employer and how, in his opinion, any such effect could be dealt with, and

(d) explain how the employee meets in respect of the study time required the conditions laid down in subsection (1).

(3) An application under this section must be made at least three months before the proposed time off is due to take effect.

(4) The Secretary of State may by regulation make provision about—

(a) the form of applications under this section, and

(b) the level of qualification to which subsection (1)(b) applies.

(5) If an employee has made an application under this section, he may not make a further application under this section to the same employer before the end of a period of twenty four months beginning with the date on which the previous application was made.

(6) For the purpose of this section an employee is—

(a) a qualifying employee if he—

(i) satisfies such conditions as to the duration of employment as the Secretary of State may specify by regulations, and

(ii) is not an agency worker;

(b) an agency worker if he is supplied by a person ("the agent") to do work for another ("the principal") under a contract or other arrangement made between the agent and the principal."

The noble Baroness said: In moving Amendment No. 223A, I wish to speak also to Amendments Nos. 223B to 223F.

A little earlier, the noble Lord, Lord Lea, talked about Clause 43, relating to union learning representatives. There has been an attempt to improve the benchmark through quite an ingenious system. I hope that I have presented here a rather ingenious way of extending the proposals put forward in the Bill a little further.

The issue picked up one that I raised at Second Reading; that is, statutory time off for study. The issue underlying this is one we have already touched on with union learning representatives; namely, the whole question of the relatively low level of skills in the British workforce. In particular, there is the low level of skills among those with what are known as Level II and Level III skills—Level II skills being equivalent to five GCSEs at A to C grades, and Level III being the equivalent of A-level.

The lack of skills in the British workforce has been the centre of many reports for the past century or century and a half. If we look back just over the past 10 years, the competitiveness reports produced by the previous government referred constantly to the problems of a skills gap. Since that time, we have seen both in the Budget and in the Pre-Budget reports the problems of productivity and skills gaps referred to frequently.

I was inspired to put forward this amendment by the statement in last year's Budget that the current voluntary approach has not secured increased participation in the workforce in terms of training.

The problem of the free rider has long perplexed British industry in this sense. It is far too easy for firms to poach other people and not to pay the costs of training. There are attempts to overcome the problem of poaching. The levy grant system that was used for many industrial training boards was dismantled, as we know, during the 1980s and the early 1990s. As I said, the voluntary system, as the Government themselves have concluded, has not worked.

In the Pre-Budget Report of November 2001, the Government went somewhat further in terms of suggesting a number of pilot schemes and ways in which the situation could be improved. This reflected a report from their own Performance and Innovation Unit. Perhaps I may quote one short paragraph from the Pre-Budget Report:

"The Government is already looking at possible fiscal measures to improve UK skills. The PIU set out a range of options to overcome barriers to training, one of which is a statutory right to time off for training and development. The Government is considering the suggestion as one of the possible ways of taking forward the commitment made in Budget 2001 and will carry out a full regulatory impact assessment and wide consultation on the development and implementation of any new policy".

I have sought to help the Government by tabling this new clause in this Employment Bill. They could now carry this suggestion forward and need not legislate further on it because we have provided them with an opportunity in this legislation. It is a hybrid It falls on the one hand on the provision relating to union learning representatives and takes from this particular clause the notion of having statutory time off. However, it also uses later aspects of the Bill, in Clause 47 onwards, which relate to time off or flexible working arrangements. Here the issue is that there shall be a right to ask for flexible working arrangements and a duty on the employer to consider the request but not necessarily to accord such arrangements. This is precisely the mix that I have put into these provisions.

I apologise for the length of the new clause, as proposed in Amendment No. 223A. It states, first, that there shall be a right to ask for time off for study; but a limit is nevertheless placed on that. It is necessary to show that such study is relevant to the work that tree employee does. Secondly, it states that the study should lead to a qualification of a level that satisfies the requirements laid down by the Secretary of State. At present, the Secretary of State, or at least the Pre-Budget report, is very concerned about people obtaining Level II qualifications. I would hope that, over time, this could be increased to Level Ill qualifications, but the provision allows the Secretary of State to lay down the level of qualification that shall be sought, that the employee is capable of benefiting from such time off, and that he or she will make good use of it.

Subsection (2) again limits the degree to which the situation can be exploited. The application must specify the amount of time off required and the dates on which it is proposed to begin and to end, and it should explain what effect, if any, the employee thinks it will have on the employer and how, in his opinion, that effect could be dealt with. The application must also explain how the employee meets, in respect of study time, the required conditions laid down in subsection (1). Thus, there are limitations on what can be done.

Under subsection (4), the Secretary of State may lay regulations relating to the form of application and the level of qualification. Under subsection (5), an employee can make an application only once in every 24 months, so it will not be time off for ever. Subsection (6) defines "a qualifying employee" and specifies when an agency worker qualifies under the provisions.

Subsequent provisions are taken from the flexible time off provisions and are essentially an appeals mechanism. I apologise for the length of the amendment. I had words with the Clerk to see whether it might be possible to use the wording already in the Bill rather than repeat it, but he informed me that I was necessary for us to repeat it at considerable length and this is why it has taken up so many pages in this group of amendments. That is the purpose of Amendment No. 223A. I beg to move.

Because we have discussed this previously, I know that the noble Baroness, Lady Sharp of Guildford, will not be surprised that I am not supporting these amendments. The atmosphere is so very nice this afternoon that I do not want to put a word in that somehow upsets that atmosphere, but I know that the noble Baroness will not mind my making a couple of points.

The amendments propose a whole new concept of time off for study leave. This is added to paternity leave, maternity leave and adoption leave, to say nothing about time off for domestic emergencies which came up under the previous Employment Relations Act. The new subsections, whose general provisions follow earlier ones in the Bill relating to fixed-term working, do not specify how much time off an employee may demand. The noble Baroness pointed out that employees must specify the amount of time but did not say what that time would be. That is different from specifying the amount of time off required. It may be more than would be acceptable to an employer, given all those other leave provisions.

Even though Amendment No. 223B(1)(b)(ii) means that the employer can refuse to grant an application on the ground of the detrimental effects on his business, there is no ceiling on the amount of time off that an employee may seek under Amendment No. 223B(2)(c), and, in theory, he could ask for the time needed to obtain a degree. There is no limit on the number of employees who might be entitled to do this. Some companies might be hard put to find any employee left working in the factory, office or wherever if all the employees were getting all this time off for all these different reasons.

How would the employer know that the employee was actually studying? Could the employer demand to see what progress the employee was making? In other words, how many exams taken pursuant to Amendment No. 223A(1)(b) may an employee fail before his employer could turn round and say, "That is enough, I need you back in the workplace"?

This amendment would place an intolerable burden on all employers, large and small. I believe that it could and would result in a company becoming uncompetitive.

I can only come back to where I started. Under the new regulations—I am not commenting on whether they are bad or otherwise—employees will be entitled to paternity leave, maternity leave, adoption leave and, as I said, to domestic leave for emergencies. All those are accepted and exist now, but the idea of granting unlimited study leave, without specifying a time limit or maximum number of employees, would be a retrograde step and would cause great hardship to employers.

Before the Minister responds, could I intervene for a moment in relation to the remarks that the noble Baroness, Lady Miller, has made?

First, I acknowledge that the climate of the Committee this afternoon is certainly somewhat different from what it has been; our debates are certainly shorter. The point that the noble Baroness made was a travesty of what my noble friend Lady Sharp indicated. My noble friend bent over backwards to indicate that she had drafted the amendment in such a way that none of the perils of which the noble Baroness was speaking would apply. There are all sorts of safeguards built into her proposal, but the noble Baroness, Lady Miller, simply ignored them and suggested that that approach was adding yet another burden on British industry.

My second point is that, as we have debated the Bill in Committee, it has become clear that, although we on this side support much of the Bill, we have expressed reservations about quite a lot of it. Nevertheless, we support the overarching theme of the Bill, and in particular the idea that British industry has moved on from the world that the noble Baroness, Lady Miller, described. We as a society, the Government as a government and we as political parties—and those of us who struggle to earn our living—are living in a world in which we encourage members of staff and employees to improve their training, knowledge and skills. Not only does society benefit; the employer also benefits. To suggest that a person's right to apply to have time off to study imposes an unnecessary burden on employers, and bearing in mind in particular the safeguards that the noble Baroness described, is to mis-describe what my noble friend Lady Sharp wishes to do. More particularly, it harks back to a world that no longer exists and which will never again exist.

Before the Minister replies, I see the safeguards in paragraphs (i) to (ix) in subsection (1)(b) of Amendment No. 223B, but the fact remains that huge facilities are currently available for people to study in evening classes. There are all sorts of colleges and I see "Enrol now" signs in all the places that I pass through on my way home. I would have thought that, if employees really want to better themselves and increase their skills, that is the line to take. Giving study leave to other employees creates problems within the workforce among those who have their heads down, are working away through a normal working day and see others "swanning off'. I know that that is not the right term because they are going to do additional study. However, there is a problem within the workforce not only for the employer, who is trying to organise the pattern of work, but also for the peer group from which that employee comes because the arrangement would set up a problem between employees.

I believe that we should reconsider the proposal. If people want to acquire better skills, more learning or whatever, they should do so in their own time. Perhaps the employer, who wants to encourage an increase in their skills, could offer to contribute to their costs or award an additional bonus. However, going off in the middle of the day on a fairly regular basis is really not on.

I add to the comments of my noble friend. I was surprised that the noble Lord, Lord Razzall, thought I was being unfair to the noble Baroness, Lady Sharp. That was not my intention. I took note of her exceptions and said that, although Amendment No. 223B means that the employer can refuse to agree on the grounds of detrimental effects—I used one of the examples involving the employer's business—there is no actual ceiling on the time. My noble friend rightly said that people can attend evening classes and many of them do so hut, if we are going to have the right to time off during the day—apart from every other right—there has to be some indication of how that would be controlled. Could someone go off for a degree? How would you know what was being studied?

I appreciate that the noble Baroness, Lady Sharp, said that this was rather a long amendment and that she had been to the Clerk's office to try to sort that out. I have no doubt that, if the proposal found favour, the situation could somehow be controlled. Perhaps there would be a limit or an arrangement by which the employer would know that the person was actually studying. The noble Baroness said that she was helped with the amendment. I am not criticising her but I point out that it contains a great many loopholes.

Before the noble Baroness sits down, I shall use one brief example to demonstrate that what my noble friend is trying to achieve has not been understood by the Conservative Benches. I refer to subsection (1)(a) of Amendment No. 223A. That states that, as a first principle, in order for a qualifying employee to have the right to apply to his employer for time off during working hours for study, the study has to be,

"relevant to the work he is doing",

and it has to promote,

"his understanding of and value in that work".

That is not the same as somebody going to evening classes to learn Latin. There has to be significant benefit to the employer. That must be understood in relation to the amendment. One does not have to agree with it—the noble Baroness obviously does not—but the arguments against it should at least be devoted to what my noble friend said.

Quite right. Before the Minister replies, I would like to add to my noble friend's comments by saying that it was suggested that an employee might go and do a degree. The answer is no, because the qualification has to be specified by the Secretary of State. The big problem is that of low-level qualifications—Level II and Level III. We do not find people at that level taking themselves off to evening classes. They attend evening classes to obtain qualification at a higher level, but it is particularly at this level that there is a lack of willingness. On the one hand, we need to try to persuade them to go off take qualifications, but on the other hand there is the issue of giving them some time off. This is not an "open sesame" to time off; there are all kinds of limitations in this regard. The noble Baroness and I discussed this before this afternoon's sitting and I know that she and her party do not agree with our approach. I understand their position but I do not agree with it.

I had better jump in at this point before we repeat this morning's lengthy considerations of these issues.

I would like to deal with all these amendments together because they share a common aim; namely, to introduce an entirely new element into the Bill —that of providing a universal right for employees to take time off for training or study. I have a great deal of sympathy with the sentiment behind the amendment. Indeed, I totally accept the argument about the importance of training to achieving greater productivity. The noble Baroness has argued on a number of occasions that t he real problem—the major problem—is with intermediate and lower-level skills. There is a severe shortage in this country in that regard. However, this; is not the right time to introduce such measures.

As the noble Baroness said, the Chancellor announced, in his Pre-Budget Report last November, £40 million to test the notion of subsidies for certain types of training, linked to opportunities for employees to take time for study and some compensation for employers who release employees for those activities. That is an immensely complex issue with substantial repercussions for industry and commerce in this country. The length of the amendments that were tabled by the noble Baroness, Lady Sharp, is testimony to the complexity of the issue.

The Learning and Skills Council is now just beginning to pilot some activity to design and test out how such a proposal might work in practice and what its implications for employers might be. We intend to evaluate this activity before reaching any conclusions on the merits of employee rights to time off for training.

In the event that the evaluation shows that to be a reasonable way forward, substantial work will be required to assess the impact of any regulation on business and the economy and to consult with those who are likely to be affected before any regulation can be considered.

I would like to thank the noble Baroness, Lady Sharp, for attempting to help by putting forward these amendments but they are premature, for the reasor s that I have stated.

I hope the shortness of this reply is not thought to be any reflection on what is an enormously important subject, but I believe the position of the Government can be very simply stated. This is something we have a great deal of sympathy for, but we believe that more work needs to be done on this, and that these amendments are therefore premature. I urge the noble Baroness to withdraw them.

I thank the Minister for his reply. I am sorry that he thinks this amendment is premature; I thought it was very nice that we were able to path the way with legislation before the pilots were completed, and then if the pilots were successful, we could use the legislation.

I am glad that he has sympathy with the sentiments here. The issues are important and I very much look forward to seeing legislation when it does come forward. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 224:

Page 48. line 28, leave out "employees" and insert "workers"

The noble Baroness said: In moving Amendment No. 224 I shall speak also to Amendments Nos. 225 to 230, and to Amendment No. 234, all amendments in the name of myself and my noble friend that have been grouped together.

Generally speaking, on this side of the Committee we thoroughly welcome Clause 45, and I believe that is also the position of the TUC.

Clause 45 of the Bill creates the power for the Secretary of State to make regulations implementing the EU fixed-term work directive. As the directive has to be implemented in the UK by July 2002, the Government have, as I understand it, started the final round of consultation on the draft Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Indeed, we made reference to that when we were talking about the Bill at Second Reading.

The aim of the directive and the regulations appears to be two-fold: to prevent workers on fixed-term contracts from being treated less favourably than comparable workers in permanent work; and to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

As I have said, generally speaking we welcome the regulations but we are concerned about the term used in the Bill. As we understand it, the Bill limits the rights to those who legally qualify as employees. The TUC has consistently argued that the Government are legally required to extend the new rights for those employed on fixed-term contracts to wider categories of workers than those who are simply legally qualified as employees. I understand that legal advice has been sought on this issue, and counsel has advised that Clause 45 of the current Employment Bill does not fully give effect to the UK's obligations under the fixed-term work directive and the framework directive.

I understand the directive applies to all employment relationships not just to employees. That would mean that it would cover workers on what used to be called "the lump" on building sites, who employers liked to regard as self-employed. They are of course in an employment relationship, and they would perhaps not be covered by Clause 45.

Also, the regulations would appear to exclude agency workers, apprentices and employees whose fixed employment, training or work experience is funded either wholly or mainly by the European Social Fund. I understand that the regulations also exclude individuals employed on the new deal subsidised employment option.

The Bill provides for many of the requirements to be brought in by regulation. It is not possible to deal with what the regulations say in detail here because that is a matter for consultation, no doubt with the appropriate organisations. Nevertheless, I believe the use of the term "employees" presents a rather strong restriction, and certainly limits the cover of what we believe is a very good exception of the Bill to those legally regarded as employees. The Government do not seem to know where they stand on this because I see that page 30 of the Explanatory Notes refers to employees in Clause 110 and then goes on to state:

"being less favourably treated than comparable full-time workers".

So they use the term "workers" as well as the term "employees". I think it would make things very much clearer for everybody concerned if the term used throughout the Bill were "worker". In Amendment No. 234, we have set out what we mean by "worker" so that there is no doubt at all what is meant by the term. I hope the Government will agree that this is a sensible proposition. It has been widely canvassed throughout the trade union movement—not just the TUC but a number of unions have written to me on this particular issue. It is quite important. I beg to move.

Before we listen to a long debate about this, can I ask the noble Baroness, Lady Turner, whether there should really be an Amendment No. 224A, because on page 48, line 30 the term "employee" appears. Should not that be "worker", too, otherwise we are going to fall into the same trap?

Certainly, yes.

I rise to speak to Amendments Nos. 235 and 236. On the list that was circulated today—apart from the triumph of hope over expectation indicating that we are now meeting on Thursday, 11th March—there is also a mistake in the grouping here in that I think a hyphen is omitted between Amendments Nos. 234 and 236. I think it is intended that I am moving Amendments Nos. 235 and 236, which raise the same point as that indicated by the noble Baroness, Lady Turner.

In the absence of our two academic experts this afternoon, for the completion of Hansard so that they can read it, it is probably important to get into Hansard the reasons why those of us who are moving this amendment do not feel that the legal advice that the Minister has received is correct. I have no doubt he is going to tell us because in another place the argument was used that the definition here complies with the European directive, and I would like to record why we believe that advice is incorrect. I fear that it is necessary to become slightly technical on this.

The purpose of the amendments tabled by myself and my noble friend Lord Sharman are intended to solve the problem by defining "worker" and "employee" with the meaning given by Section 230 of the Employment Rights Act 1996. There are many different ways of doing that; we have chosen to do that, and we believe that amendment would include satisfactorily fixed-term workers who would not otherwise be categorised as employees.

The difficulty that the Government's lawyers have not satisfactorily dealt with is this. The directive that puts into effect the framework agreement on fixed-term workers was referred to by the noble Baroness, Lady Turner. Clause 2 of that agreement provides that it should apply to,

"fixed term workers who have an employment contract or employment relationship as defined in law, collective agreement or practice in each member state".

Clause 3 of the framework agreement defines a fixed-term worker as,

"a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event".

It does not seem to those of us who have looked at this rnatter—I include the very helpful comments made by the Law Society—that the way in which the Government have drafted the Bill covers the words that I paused on in either Clause 2 or Clause 3 of the agreement. It does not explain why the words in Clause 2 of the agreement,

"or employment relationship as defined in law, collective agreement or practice in each Member State",

or in Clause 3,

"or relationship entered into directly between an employer and a worker",

are dealt with in the way that the Government are defining "employee".

I have gone on at some length because, as I indicated, it is important in the absence of our academic experts that Hansard reflects the argument correctly. However, I shall add one aside. When debating this clause in another place, the Minister noted that the directive specifically included agency workers. Two issues arise in relation to that. The implication must be that if the directive did not specifically exclude agency workers, they would have been covered by it. By the same logic, therefore, it must be the case that other workers who are not agency workers and not specifically excluded from the directive must be covered by it. Therefore, from these Benches I commend the amendment. We believe that the Government's legal advice is wrong on this matter. I believe that the noble Baroness, Lady Turner, indicated why she considered it to be wrong. I beg to move.

I rise briefly to support noble Lords who have spoken to these amendments. It has been explained why we believe that the term "employee" is not adequate in this context. I wish to reassure the Minister that we do not argue this terminology only nationally; indeed, in the past, we have from the TUC point of view argued it internationally. In particular, in relation to the part-time workers' directive in discussions in which I took part in Brussels, we made the point very firmly that the term "worker" represents a much wider concept than "employee".

Members of tae Committee have tabled two slightly different groups of amendments, both questioning the scope of the power in Clause 45 in relation to fixed-term work. One amendment seeks to extend the power to a broader group of workers using the new definition of "worker". The other seems to question whether the powers on fixed-term work contained in Clauses 45 and 46 should apply to all workers in line with the part-time workers' regulations. I shall address both amendments together.

I shall explain in a moment why we have decided that the fixed-term regulations should apply to employees. First, perhaps I may address the new definition of "workers" proposed by the first group of amendments. The amendment seeks to extend the power in Clause 45 so that it covers a broad category of working people. The definition proposed would introduce an entirely novel meaning of "worker" into employment law. That would risk causing confusion, particularly since more recently introduced rights that apply to a category called "workers", including the part-time regulations and the right to be accompanied, use the definition of "worker" in the Employment Rights Act 1996.

This is probably the most important point in the amendment. We are now conducting a review of' employment status. As part of that review, later this spring we intend to publish a discussion document on employment status, following consultation With stakeholders. The review will look at the coverage of certain employment rights. It therefore seems inappropriate to introduce this further new definition to employment law at this juncture.

We considered and rejected the idea that the clause should have required the Secretary of State to make regulations covering all fixed-term workers. We take the view that in making provision about employees, we are fully implementing the European Community Fixed-Term Work Directive. The directive does not, require us to cover workers other than employees. As the noble Lord mentioned, the directive requires us to legislate in respect of,

"fixed-term workers who have an employment contract or employment relationship as defined by national law and/or practice".

It is clear from these words that this is not a case where there is a single, Community-wide meaning of. "worker"; the UK can choose its own definition provided it is defensible. We take the view, both on underlying legal principles and precedent from the UK's existing employment legislation (including implementation of other directives), that it is within the UK's discretion to implement in relation to employees only. In so doing, we would not only be replicating the coverage of most domestic UK employment rights but also protecting those most likely to have the length of their working relationship determined by reference to time.

In our view, both the part-time and fixed-term directives required us to cover only employees. However, we extended the part-time legislation to all workers, since this was seen as a special case. In particular, the overwhelming majority of part-time workers are women, so there is substantial overlap with existing sex discrimination legislation which has a wide scope.

The Explanatory Notes are correct in that when referring to fixed-term we use "employees" and when referring to part-time we use "workers". That is one of the issues that needs to be covered by the review we are doing as to whether this is sensible and consistent across the whole board. The wording in the fixed-term directive was also used in the parental leave directive. Regulations implementing that directive apply to employees only.

Where workers have a casual employment relationship, it may be possible to identify short contracts of employment corresponding to periods of work. While they are working under these contracts, the workers concerned are employees. For example, agricultural casual workers are employed on a daily or hourly basis without any obligation on a worker or a hirer to work or provide work beyond that day or hour. They would probably be regarded as employees with fixed-term contracts corresponding to periods they have agreed to work.

In summary, we have a review of employment status which is now beginning. When we have completed the review, we can see whether we are applying employment legislation fairly across the board in this respect. I hope this explanation of our thinking is helpful and I would ask the noble Baroness to withdraw the amendment.

I thank the Minister for that explanation. I am glad to learn that a review is proceeding and, presumably, we shall not have to wait too long for the result. I note what he says in relation to the directive; that is, that the UK can choose its own definition provided it is defensible. I wish to think about that before we reach Report stage to see whether there is some aspect or other that we should still pursue on Report. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 231:

Page 49, line 33, at end insert—

"( ) No regulation made by the Secretary of State under subsection (4) shall exceed the requirements of Directive 99/70/EC or any amendment, modification or re-enactment thereof for the time being in force."

The noble Baroness said: In moving Amendment No. 231, I wish also to speak to Amendment No. 237. They are both identical and relate to the powers of the Secretary of State to make regulations relating to Directive 99/70/EC, which in turn relates to fixed-term workers. Clause 46 relates to Northern Ireland and Clause 45 to the rest of the United Kingdom.

Subsection (4) to both Clauses 45 and 46 begins with the preamble,

"for the purpose of implementing Council Directive 99/70/EC".

In our dealings across the Dispatch Box and outside the Chamber the Minister has always done his best to be frank and open with me. That, however, I do not believe is characteristic of this Government as a whole. However, in the Explanatory Notes, in an uncharacteristic outburst of candour, the Government say,

"the Government takes the view that, on account of its legal base, this directive does not apply to pay and pensions … and the Government intends to prevent pay and pensions discrimination against fixed term employees, in addition to implementing directive 1999/70/EC".

I repeat the words,

"in addition to implementing [the] directive".

That aspiration is directly in contradiction to the phrase in both Clauses 45(4) and 46(4) which I read earlier,

"for the purpose of implementing Council Directive 99/70/EC".

The powers that the Government are seeking to make future regulations would enable them to go beyond—far beyond—what the directive requires. This is a classic example of something about which we have frequently complained; that is, the habit of the Government of gold-plating EC directives.

It is bad enough that the directives of the EC frequently tend to be over-prescriptive, a phrase which the Government often use about the amendments that I propose. It is bad enough that the accumulative effect of these directives is to make the EU increasingly uncompetitive with the rest of the world, and is helping to fuel the unemployment in Germany and elsewhere. However, our Government, who when they were in Opposition described our thriving bureaucracy and strike-free economy as "the sweat shop of Europe", are now rushing headlong into pushing us down the competitive ladder. Anything that Brussels can do, Whitehall can do better.

Elsewhere in the Bill, I am proposing an amendment which will ensure that with a minimum of regulation, the objective of ensuring fair play for fixed-term employees is achieved. That is all that is needed.

The amendment to the two clauses simply ensures that the Government adhere to the EU guidelines, just like our European competitors, and do not go beyond them, because we are not obliged to do so. I beg to move.

I should like to speak to Amendments Nos. 231 and 237. Amendment No. 237 is the same as Amendment No. 231, except that it applies to Clause 46 which enables fixed-term regulations to be made in Northern Ireland. The same arguments against Amendment No. 231 apply to Amendment No. 237.

The amendment would prevent the regulations under Clause 45 from imposing any obligations beyond those required by the EC fixed-term work directive. The amendment would therefore mean that the regulations made under the clause would allow employers to pay their fixed-term employees less than their permanent staff and give them less favourable pension rights just because they were on fixed-term contracts.

In our view, the fixed-term directive does not require us—and we have made that clear—to prevent pay and pensions discrimination against fixed-term employees. However, following a full public consultation last year on the implementation of the directive, we have evidence of pay disparities between fixed-term and permanent employees that I believe justifies taking power to do this.

Other EU member states have already stopped or are expected soon to stop pay discrimination against fixed-term employees. We do not know of any member states which intend to exclude pay from the nondiscrimination requirements of their legislation when transposing the directive. We do not see why British fixed-term employees should be treated as second class. There is therefore no case here for saying that this will make British industry uncompetitive against other EU countries.

When we come to implement the fixed term work directive, we intend, in light of the evidence of pay and pensions discrimination against fixed-term employees we received in the fixed-term public consultation, to prevent pay and pensions discrimination as well.

When transposing the part-time work directive, we also decided to cover pay and pensions, despite our view that this was not a requirement of the directive. Fixed-term employees are in a similar position to part-time ones in that they work for the same employer as comparable, permanent or full-time employees, but have a different contractual arrangement. By making fixed-term work pay, we shall make this flexible form of work attractive to work seekers. Fixed-term employees have an important part to play in our labour market and they are entitled to a fair deal.

Preventing pay and pensions discrimination will protect about 1.2 million fixed-term employees in Britain. Many employers do not discriminate against their fixed-term employees unless they have sound, objective reasons for doing so. Requiring equal treatment will help prevent these "good practice" employers from being undercut by unscrupulous competitors.

Identifying the exact requirements of a directive is not always a simple matter. It would be difficult for the Government to transpose many directives, including this one, as precisely as this amendment requires, because of the degree of uncertainty that exists as to how they should be interpreted. The noble Baroness's amendment would force the Government to simply "copy out" the directive, so leaving businesses to interpret its requirements. This would transfer the risks of incorrect interpretation on to employers. The Government do not want just to "copy our this directive and therefore need a degree of flexibility when transposing it.

I hope that this explanation of our thinking and of the likely intentions of our European partners is informative and reassures the noble Baroness that we are not placing British business at a competitive disadvantage to other companies in Europe. When the time comes, she and her noble friends will have the opportunity to debate the regulations that we lay. I would ask her to withdraw these amendments.

Perhaps I may raise one point which has not been dealt with sufficiently. This is one of a series of directives which derives from the social partners agreement and the Social Chapter, which the party opposite may not be as enthusiastic about as some. However, it is a procedure whereby ETLC—the British affiliates are the TUC and the CBI—are parry to a framework agreement. The framework agreements are generally quite short and are in extremely sharp contrast to, for example, the working time directive.

One cannot have it both ways on an issue such as this. If one wants something that is negotiated, with that degree of extra commitment from the TUC and the CBI—the CBI would totally endorse what I am saying about this—one has a framework agreement because one can live with it. However, that raises the interesting question of more difficulty or flexibility c f transpositional interpretation. One cannot have it both ways.

I hope that on due reflection at some stage, the noble Baroness, Lady Miller, will appreciate that bringing atypical workers—"atypical" is the word used for part-time, fixed-term, agency workers and so on—into more normal employment relationships, which over time will include pensions, training and so on, mean; that those workers, the flexible workforce of the future, will be accepted as part of the normal economy. In fact, it is not the case that we are losing our competitive position with the United States on this o- other matters. Looking at the productivity per hour, one sees that many European countries have caught up with and are ahead of the United States. They have shorter holidays, they work like dogs and they have a higher gross product. But that is a trade-off between leisure and individual income.

The fact is that we in Europe are now able to give some status to all those workers, which has been a phenomenon in Europe more than in the United States in the past 10 years. That is why the flexible employment relationship, much vaunted in the future, will be underpinned by this range of framework directives.

I simply say to the noble Lord that America is creating more jobs than are being created in Europe and has been doing so for many years. Germany is presently having a very bad time. I make that remark as an aside but it is a matter to bear in mind.

When I started this amendment, I quoted the preamble,

"for the purpose of implementing Council Directive 99/70/EC".

In fact the Government have gone beyond what was necessary for the purpose of implementation, as I said to the Minister. If one starts extending pension rights to fixed-term employees, what would be the minimum length of a fixed-term employment contract that would enable that employee to get involved in the company's pension plan or whatever it was, and to get the pension? How would that work? I think that it is quite a serious issue. At the moment, because of the problem that the Chancellor of the Exchequer became involved in with pension plans, many companies now are closing down their pension plans because they cannot afford to fulfil their undertakings under them. This provision goes beyond anything which is required, beyond anything that is happening in Europe and, I would submit, can only add to that particular problem.

The Minister may or may not feel able to answer on that point now. However, I intend to withdraw the amendment, but will most certainly think again about it because I think that it has a lot of merit and I am worried about the consequences of doing what the noble Lord suggests in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 232:

Page 49, line 33, at end insert—

"( ) An employee on a fixed term contract shall not be deemed to be "treated less favourably" if he is receiving an adequate amount of money or money's worth in lieu of benefits received by permanent employees of the same employer which cannot reasonably and practicably be accorded to him."

The noble Baroness said: I should like to speak to Amendment Nos. 232 and 238 together. The amendments are identical. They relate to Clauses 45 and 46 respectively, the latter of which relates to Northern Ireland while the former relates to the rest of the United Kingdom, rather like the two previous amendments.

In speaking to my other amendments to these clauses, I referred to the European Council Directive 99/70/EC. As the Explanatory Notes state:

"The … framework agreement is to apply the principle of nondiscrimination to those in fixed term employment … contracts or relationships."

I do not think that I have quoted that particular one previously.

As I have already pointed out, the Government are attempting to goldplate that directive. Subsection (2) in each of Clauses 45 and 46 sets out a definition of what may or may not be less fair treatment of fixed-term employees, and indeed who those employees may be. We find nothing intrinsically wrong with the definitions in paragraphs (a) to (f) of subsection (2).

However, there is absolutely nothing in the powers granted to the Secretary of State to limit the contents of the regulations, so that he can stipulate all sorts of benefits that must be included in the contract of a fixed-term employee. This would be whether they are practical and reasonable or not, or whether the employee on the fixed-term contract, in freely negotiating his terms, wants them or not.

The Government have referred to pensions. There are cases where absolute identity between a fixed-term contract employee and a permanent employee is simply not practical. I touched on that on the previous amendment. The Government's objective of equal pension rights is a case in fault. Many pension schemes require a minimum length of membership before any benefits can accrue—sometimes as long as two years.

If an employee is engaged on, say, a six-month contract—perhaps temporarily to act as a locum for an employee on maternity, paternity or adoption leave—the actual benefit that the temporary employee would receive would in any event be minimal. How is it practicable for an employee on a six-month contract to, say, set up a computer network, to be given two weeks' holiday out of that term?

Government Ministers at the Dispatch Box opposite sometimes unjustifiably accuse me of being "over prescriptive". In this case, I am trying to avoid the necessity for the Secretary of State to be over prescriptive in the regulations that she is to make. I am trying, helpfully, to avoid the Secretary of State having to think up every possibility that could arise in contracts of employment, or to have to come back to Parliament when she discovers that there is something that she has left out, or some loophole she has left in.

As we saw recently, pronouncements by the Government on the subject of the possibility of two-tier employees in the public service show that new Labour has a superstitious and irrational fear of two workers in the same employment being paid differently from each other. Perhaps that is the reason the Government are seeking to dot every "i" and cross every "t" in every contract, even with temporary employees.

My very simple and short amendment makes things very easy for the Secretary of State. It permits employers and employees to come to their own arrangement about the terms of the contract. And it permits the only two parties who are involved to decide for themselves how much the absence of a pension, the lack of holiday time or the fact that a company car will not be provided is worth in terms of hard cash to be paid to the employee in lieu.

The amendment anticipates and meets two possible objections. First, the amount of money, or money's worth, to be given to the employee must. of course, be adequate. What is adequate will depend upon the facts of the case and not upon rigid guidelines set out in a regulation. Secondly, the ability to substitute money, money's worth or benefits received by long-term employees applies only when it is not reasonable and practical to grant the same benefits to the fixed-term employees. I beg to move.

I shall speak to Amendments Nos. 232 and 238. I believe that Amendment No. 238 is the same as Amendment No. 232, except that, again, it applies to Northern Ireland. Again, the arguments are similar in both cases.

The noble Baroness's amendments seek to ensure that the regulations state that fixed-term employees are not to be considered to be "treated less favourably" if they receive an adequate amount of money or money's worth in lieu of benefits received by permanent employees of the same employer which cannot reasonably and practically be accorded to him or her. That would allow employers to take a "package" approach to the equal-treatment principle.

We recognise that both employees and employers may choose to take a package approach to equal treatment. The draft Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which have been placed in the House Library, provide for a package approach.

The draft regulations state that an employer can treat fixed-term employees less favourably than comparable permanent employees where the treatment is objectively justified. Whether treatment is objectively justified will depend on all the circumstances of the case. However, the draft regulations provide in particular that less favourable treatment in relation to particular contractual terms will be justified where the fixed-term employee's overall package of terms and conditions is no less favourable than the comparable permanent employee's.

Employers will therefore be able to balance a less favourable condition against a more favourable one, provided they ensure that a fixed-term employee's overall employment package is not less favourable than that of a comparable permanent employee. Our approach already offers flexibility because it does not require a package approach to be used in every case whether the employer wants to use it or not. We consulted widely with employers and employees, some of whom prefer a package approach and some of whom do not. There will sometimes be a very good reason why a particular benefit is not given to a fixed-term member of staff; it would be time-consuming and irrelevant to make a tribunal consider every aspect of employees' employment packages in all cases.

I hope that the noble Baroness is satisfied that the draft regulations already allow a package approach to equal treatment and therefore will be happy to withdraw the amendment.

As I cannot divide the Committee, I shall certainly have to withdraw my amendment. However, I should tell the Minister that I am not happy to do so because I do not agree with what he has said. My amendment does not mean that the employee has less favourable terms. In fact, it states that he,

"shall not be deemed to be 'treated less favourably'".

If, instead, he received adequate money in lieu, he may well not want the pension. If he is on a very short-term contract, the pension may provide him with practically nothing at all. Thus, if he had extra money, he might well be better off. That is why it is a question of the matter being sorting out between the parties. Sometimes, insisting on including something that would be of no benefit to an employee is not helpful to the employee.

However, despite the fact that I am not happy to withdraw the amendment, I am delighted to do so because it is the end of the evening's proceedings and we can finish our business of the day. It has been a very long day, and I am sure that the Minister has had an equally hard one. For me, in many respects, it is perhaps time to call it a day on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Perhaps I may suggest that this is a convenient moment to adjourn proceedings for today. A date and time for a further Committee day will be announced in due course.

The Committee adjourned at half-past seven o'clock.