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Sir Teddy Taylor (Southend, East) : It is time to clear up this whole TUPE business, as the truth has not been told. Labour's proposal is ridiculous. The hon. Gentleman is suggesting that someone who is not redundant should be regarded as redundant, that someone who, through the generosity and good will of the European Community is guaranteed the same job with the same pay and the same working arrangements, working in the same place, should be treated as redundant. Surely the Labour party, which has a splendid record of fighting for working people, cannot regard as redundant someone who is not redundant at all.
Mr. Galbraith : I do not agree, although we may wish to discuss that issue. However, other rights apart from the right to redundancy payment are also involved. The right to notice of termination of employment and the right to payment in lieu of notice would also be lost. In other words, an employee would go from having certain rights to having absolutely none at all. We may wish to discuss what rights are available to that individual. Some rights may be inappropriate, but it is clear that, as a result of a change in the working relationship triggered by the employer, absolutely no rights are available to the employee and that cannot be acceptable. That is what we seek to amend.
Mr. Graham : Last night we discussed the fact that some employers were bribing workers not to be members of trade unions. If I were an employer and another company
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was buying out my company, I would not expect my staff to want to transfer because they would have to accept a reduction in pay. Many people would end up working for employers who were hostile to their fully held union beliefs and would not wish to work for such companies.7.45 pm
Mr. Galbraith : I thank my hon. Friend, who made his point in his usual inimitable style.
Mr. Clapham : Is my hon. Friend aware that the situation that he describes appertains to the coal industry? If a colliery surface is privatised and sold to a new company, employees previously employed by the British Coal Corporation receive the opportunity of accepting redundancy. They are paid money in lieu of notice and then, if they wish, they are taken on by the new employer.
Mr. Galbraith : These issues certainly merit further discussion. I understand that the Government introduced the measure to deal with the Kastikis case and therefore they probably had less time than usual. However, it raises a number of issues.
Our interpretation is that the amendment removes from the employee every right that he or she has. Perhaps the Minister, who shakes his head, can say whether or not an employee who refuses to transfer still has the right to notice of dismissal and payment in lieu of notice. Finally, when is it considered to be dismissal? Is it when the employee signs an undertaking saying that he does not wish to transfer, or is it when the engagements have been transferred? Given the opportunity to confer rights on individuals, once again the Government have failed. I understand their hostility to TUPE. I well remember that, in Committee, the Minister used to speak through clenched teeth and explain to his Back Benchers who were up in arms that, no matter what his personal feelings were, he could not alter European law.
It was probably one of the saddest moments in the Minister's political career. It was the bottom, and he has had some pretty low points. For example, he accused the National Federation of Women's Institutes of being a Marxist organisation. These poor women in Stirling, Callander and Doune making jam and buttering scones on behalf of charities were all labelled Marxist subversives. They were shaking in their boots in Callander.
Under the amendment, do employees lose all rights when they refuse to transfer and when are they considered to have made that refusal?
Sir Teddy Taylor (Southend, East) : The Opposition's amendment is one of the most ridiculous that I have ever seen. The clear implication of the hard-fought-for right to compensation for redundancy was that someone made redundant was entitled to compensation. We are talking here about a situation in which a new employer takes over a service. If the new employer, through the generosity of the EC, is obliged to offer the same job, without any change in working conditions, even in the room in which he works, without any change in wages, without change in anything, there is no way in which that employee can be declared redundant. The Opposition's amendment is ridiculous because in it they are asking for a special category of redundancy to be given to people who are not redundant at all.
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But it is not that which worries me so much as the Government's proposal and the Lords amendment, not because I object to it--it seems quite sensible, particularly the new paragraph (4B)--but because I am concerned about whether the Government are right.The only point that I want to make, which I hope the Minister will think about, is that when we look back we see that two things have happened. First, the Government have been consistently wrong in their judgments or assessments of the law. Secondly, the most shameful cloak of secrecy has been thrown over the TUPE business. The Government have consistently sought to try to hide the iniquitous policies of the EC, the way in which our freedom is being taken away and the way in which industry, commerce and jobs are being undermined.
That is clear, as we see time and again. Perhaps most obvious is the fact that we are not allowed to table questions on the size of the piles of food in the EC. All kinds of things are being covered up, but on this issue I make two points. First, because of the Government's cloak of secrecy, there has been a deliberate attempt not to tell employers what is happening. Privatised employers feel most upset about the fact that the long infraction proceedings initiated by the European Commission were not made public by the Government, and employers and local authorities went ahead with arrangements, making contracts and offering out services, without being aware that all the time Jacques Delors and his friends were nibbling away at the matter, with serious results.
The second point on which I hope that the Minister will give me some guidance concerns what will happen to the local councils that privatised their services many years ago. Southend is an obvious example. We privatised services, we believe to the benefit of the ratepayers, although that is a question of judgment, and saved money. But whether we were clever or stupid, the Minister will be well aware of the judgment on the Eastbourne case, as a result of which it seems that backdated responsibility will be put on the councils or the employers to pay massive sums of money to the employees concerned. Not only will they have to make redundancy payments to workers who were made redundant at the time of privatisation, but they will have to compensate them for loss of earnings as well.
Eastbourne and Southend sacked all the workers, brought in a new employer who appointed new people, no doubt with better working conditions--in Southend the wages rose over a period--but there were far fewer people doing more work. Now, having done what the Government told them to do, they find that they are faced with horrendous liabilities. What we in Southend would like to know, what Eastbourne would like to know, is who will pay. We are not clear whether the employer or the council will have to pay. We understand that it will be the employer who has to pay, which will put many good employers out of business through no fault of their own. If that happens, it will be serious.
I should like the Minister to give advice, particularly to friends of mine who pop into the House of Commons from Scotland from time to time, on who will be responsible for that and what will happen. The Minister will be well aware from the activities of the clause 26 group--a group of private employers--that they feel let down. They did what was legal and what the Government told them to do. They did a good job and now they find that they are being clobbered retrospectively through no fault of their own.
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It would be okay if the Government said, "Look, we are terribly sorry, but Jacques Delors has mucked all this up. We don't control the EC. They did it." But the fact is that for two years the Government were being pursued by the EC Commission. They knew it would probably go funny, they did not tell the employers, new contracts were made and a great loss was involved.Secondly, what the blazes is the Government's advice now? I have seen the advice given by the Secretary of State for the Environment to locold :
"Mr. Farrell of the TGWU is not incorrect in suggesting that the TUPE will require any future contractor to guarantee the existing wages and conditions of cleaners based at your school. It should not be assumed, however, that the Regulations will apply in this particular case."
What is the Liverpool council meant to do? What are councils throughout the land meant to do when not only are they told that it may be correct but it may be wrong, but they also receive circular letters from the Secretary of State for the Environment with huge newsletters saying that, if they try to shove in TUPE, they could be taken to court under some strange regulation of local government legislation, and the council could be held personally responsible? We have the crazy situation in which councils are looking for advice, they are given ambiguous replies and then they receive circulars from the Department of the Environment saying that, if they do not get it right, if they do not follow it through, the councillors could be taken to court for letting down the ratepayers. Thirdly, and terribly importantly, will the Minister give some guidance on what will be the difference on 1 July 1993? On 1 July, which is not far away, something called the EC services directive will apply. The expert officials who follow such things with great delight will be well aware that that says that any contract over £142,000 will have substantial consequences for TUPE and the responsibilities of local authorities. My understanding is that the ambiguous advice given by the Department of the Environment will be overtaken on 1 July 1993 when the EC services directive comes into force. There is not much point sending out circulars when we are getting it all wrong.
I simply make the point that the Government are saying, "Don't worry about this one. We have put it right and we will say that people who are not redundant should not be redundant because that is the way we have interpreted the European directive. We appreciate that the acquired rights directive was passed under a Labour Government, but it was a long time ago and the directive that was passed at that time is wildly different from the present law." My final point--I hope that the Government will think about this--is that many private firms in Britain face disaster if they are to be sued retrospectively for doing what was legal at the time according to the British courts and the British Government, according to the advice that they had which was legal. They will face bankruptcy and ruin and many workers will be sacked. There is something very wrong in such a situation and something must be
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done. At the very least, our delightful new Secretary of State for Employment should say that he will meet those people and talk to them.The whole problem has arisen because of the EC's obsessive desire to be involved in every aspect of law. I accept that the Labour party is delighted that some of the things that it wants--
Mr. Graham : Is the hon. Gentleman saying that people whose jobs were taken over have the right to have their existing wages and conditions transferred with them?
Sir Teddy Taylor : Previously they had no such right. If the service was transferred, there was no guarantee for anyone. The new employer could employ two people to do the jobs of 10. He could pay them half the wages. But, as the hon. Gentleman is well aware, that has all changed because of the delightful EC and the nice Mr. Delors. He said that everyone's job was okay, no one's conditions could be touched, and there must be meaningful consultation with the workers' representatives.
As hon. Members probably know, the EC made four demands of the Government, three of which they accepted without a fight ; they simply caved in, which I find astonishing given that the Department of Employment was meant to be tough on the matter. The only issue on which they are having a battle with the EC is that the EC wants workers' representatives to be defined as workers' representatives. The Government say that the only workers' representatives that a Tory Government are willing to accept are registered trade unionists. That will probably lead to a great battle in the European Court. Perhaps my hon. Friend the Minister will tell me why, when the EC makes four ridiculous demands, the Government accept three of them without a fight and include them in the Bill. The only one that they want to battle against is that which ensures that only registered trade unions will be entitled to discuss the issue on behalf of workers. That is terribly unfair. Will I have to rush up and down the Fenchurch Street line, which is to be privatised, and say to every rail worker, "For goodness sake, rejoin a trade union"?
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My hon. Friend the Minister may say that that is silly, because everyone will benefit from the discussions, but the fact remains that the people discussing it will be the registered trade unions. If I were an employee on the Fenchurch Street line, I would want to make sure that the organisation discussing it was one of which I am a member. We have ended up with an appalling situation.
I accept that the main responsibility lies with the EC, which has stretched the acquired rights directive well beyond the bounds intended. I acknowledge that private firms are suffering hugely because of the retrospective element that will arise from the Eastbourne case, and that many face ruin. I accept also that the Government, sadly, have tried to pull a cloak of secrecy over the whole business. Being pro-European, they are trying to push through, with the help of my delightful and hon. Friend the Member for Worcester (Mr. Luff), a Bill that will give even more power and responsibility to the EC, and want to hide the fact that businesses are being ruined and people are losing their jobs because of the acquired rights directive.
No Government like to say, "Give more power to this crowd," when jobs are being lost. [Laughter.] My hon.
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Friend the Member for Worcester should not laugh at this. These are real problems. If his local authority has passed any contracts over to private firms, it will now face being chased retrospectively for lots of compensation for all those involved. It is not a laughing matter at all ; it is a matter of jobs, cash and private industry. Hardly anyone knows what is going on. Only the firms which will lose jobs and cash, and which will probably go out of business, know. I ask the Government to tell people what is happening. If the public do not know, how can they possibly prepare for the problems ahead? We appreciate that the Government can do nothing about EC measures other than fight them--and the Government do not want to do that.Mr. Clapham : The hon. Gentleman used the word "freedom". Does he agree that Labour's amendment would give the individual freedom to decide whether to transfer to his new employer or to accept redundancy and look elsewhere for work?
Sir Teddy Taylor : That freedom has never been challenged by anyone. It is surprising that the hon. Gentleman, as a Labour party member, should say, "Please treat as redundant someone who is not redundant."
Where is the money for redundancy payments to come from but from public and private funds? If someone is offered the same job, working conditions, and everything else, it is difficult to understand why a Labour party member should say, "We will regard that chap as redundant." If I do not like the new foreman of my shipyard, why should I not be allowed to do the same and to change him? Why should I not be able to do the same if the shareholding of my company changes? It is terribly wrong to introduce a new law that says that someone should be treated as redundant when he is not.
Will the Government please hold discussions with the private employers, who are concerned, worried and perplexed? Will they tell people what is happening, because they did not tell them in the past? If they do that, we may enjoy a bonus in a dreadful situation, which will inevitably grow worse with the determinations of the European Court.
Mr. John Hutton (Barrow and Furness) : Once again, the House finds itself discussing the Transfer of Undertakings (Protection of Employment) Regulations 1981, which have a convoluted history. The hon. Member for Southend, East (Sir T. Taylor) is correct when he says that there is considerable concern among private employers as to the implications for them of recent decisions of the European Court. That is common ground between right hon. and hon. Members on both sides of the House.
I differ from the hon. Gentleman in that I believe that those difficulties have more to do with the drafting of the regulations than with the interpretation that should be placed on the acquired rights directive. The history of the directive's jurisprudence makes it clear to me--and, I am sure, to other lawyers--that, although the directive itself is simple and transparent, the 1981 Conservative Government introduced the regulations from a position directly contrary to the directive's purpose and intent.
When a series of domestic regulations such as TUPE that supposedly implement the terms of a European directive are portrayed and presented from a different
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standpoint, sooner or later there will inevitably be conflict. The legal position is clear. In any case of conflict between a Community member state's domestic regulations and the terms of a directive, then--whether the hon. Member for Southend, East likes it or not ; clearly he does not, and I respect his views--the directive must take precedence.That confusion between the implications of the 1981 regulations and the clear intent and purpose of the acquired rights directive is a cause of genuine concern, but many of the difficulties to which the hon. Member for Southend, East referred are the fault and responsibility of the Government, in trying to implement the directive.
The hon. Gentleman mentioned a matter of particular concern in Southend, arising from the implications of privatising its public cleaning department, and the question whether the private contractor who took over that work will now face a serious legal liability. I understand that that might well be the case, but it is equally clear that the Government may have liability for the predicament in which many small employers now find themselves.
In the Frankovitch case at the beginning of the 1990s, it was established in the European Court that a legal liability can be enforced in member states' domestic tribunals, where a member state fails properly to implement the terms of a European directive. In Committee, I put that point to the Attorney-General. He made no attempt to respond, but there is a distinct possibility that the British Government may face substantial legal liability because of their botched attempts to implement the acquired rights directive.
Mr. Michael Forsyth : The hon. Gentleman describes the British Government's attempts to implement the acquired rights directive as botched, but those attempts were made by the last Labour Government.
Mr. Hutton : The Minister is being uncharacteristically disingenuous. Although the last Labour Government attempted to introduce the regulations in the House, they made no reference to the notion of a non -commercial venture, which is the source of the difficulties in which the Government now find themselves. That notion was a transparent design to exempt from the acquired rights directive the privatisation programme that was then beginning and the eventual competitive tendering process which left many casualties in its wake. The Minister is wrong to suggest that the difficulties surrounding TUPE 81 are the responsibility or fault of the last Labour Government. He must remember that they did not succeed in bringing any enforceable regulations into effect.
Mr. Forsyth : The hon. Gentleman is right, but the last Labour Government signed up to the acquired rights directive and, in the other place, gave an assurance to the House that the directive's provisions would not have the effect of including private contracting of the kind that concerns my hon. Friend the Member for Southend, East in respect of public sector services. That is firmly on record, as the hon. Gentleman knows from our previous, rather lengthy debates on the subject.
Mr. Hutton : We certainly had lengthy debates about the issue, but it is clear from our exchanges tonight that we shall not be able to agree about the import or intent of the
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acquired rights directive, or about the efforts of the previous Labour Government to introduce them into British domestic law. I repeat my central allegation against the Government : our predicament, to which the hon. Member for Southend, East drew our attention yet again--I think I am right in saying that he spoke to the regulations when they were introduced in 1981 and made similar points to those which he has made tonight about the implications for private sector contracting-- lies exclusively at the door of the Government. They misled many private companies that were interested in tendering for public sector work by telling them they did not have to worry about the implications of the TUPE regulations on the tendering process. It is astonishing, and therefore, I suppose, wholly in character, for the Minister of State to repeat his bogus contention tonight.We have probably spent enough time dealing with historical issues. I know that they are of concern to the House, but I now direct my attention specifically to Labour's amendment and to the Government amendment tabled in another place by Lord Ullswater only a few weeks ago.
As my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith) said, the amendments are connected to the recent decision of the European Court of Justice in the Katsikas case. The Government's attempt to respond to that decision is typically extreme : employees will have no rights whatsoever if they choose not to permit their contract of employment to be transferred to the transferee, or the new employer.
The Minister of State and the hon. Member for Southend, East have made some play of the question, why should it be possible for an employee to have any statutory employment rights in those circumstances? The hon. Member for Southend, East described the situation as perverse. He said that it would not be a genuine redundancy so it would be unacceptable and inappropriate for workers in that position to have any employment protection.
However, I point out to both hon. Members that if one casts even a cursory glance at British redundancy law--for example, at section 84 of the Employment Protection (Consolidation) Act 1978--one finds that plenty of examples of what one can best describe as specific redundancy cases are already written into English law. They perhaps do not come within the commonsense definition of the term, but we are dealing with the law and, as any lawyer will tell you, Madam Deputy Speaker, law and common sense do not usually have much connection with each other.
Section 84 gives employees the right to claim a redundancy payment even though they have been offered suitable alternative employment by another employer. As long as an employee reasonably refuses that offer, he or she is entitled to a redundancy payment. There are other examples in British employment law of workers being given a right to claim a redundancy payment. I am thinking in particular of the provisions relating to time off during short-time working. If a worker is laid off or put on short-time working, even if his job still exists he is entitled
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to claim a redundancy payment from his employer. The precedents are not in favour of the argument made by the hon. Member for Southend, East.Other discrepancies may be found in the law applying to redundancy, but we could find plenty of examples under British employment law where workers are entitled to claim a redundancy payment even though it appears that, at first glance, a job still exists. I do not think that there is anything illogical or improper in that. If we want confirmation of that, we must consider the purpose of the Katsikas judgment.
My hon. Friend the Member for Strathkelvin and Bearsden was correct to say that the Katsikas judgment came as something of a surprise. Most people assumed that employees had no option but to accept the transfer of their contract. With hindsight, and after looking after the terms of the judgment, I am glad that the European Court of Justice decided that that was not so.
The Katsikas judgment was designed specifically to protect employees. It was an attempt not to subvert the import of the acquired rights directive but to enhance it by making it clear that a worker was and should be entitled to decide whether he wants his contract to be transferred to the new employer. I hope that there will be no disagreement between us about that. What is objectionable about an employee having the option of saying that he does not want to work for the new employer? The issue is the right to choose for whom one works.
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In the past, the House abolished slavery and ended enforced, conscripted labour. I am sure that Conservative libertarians will accept that individual employees should have the option to decide whether to work for a particular employer. If they exercise that option for genuine reasons--they may, for example, have an aversion to the management style of an employer-- and state that they do not wish their contract to be transferred, there is no reason why they should not also claim a number of the statutory employment rights. There is nothing illogical in that.
We could perhaps have a more structured argument about exactly what rights an employee should have in such a case, but our objection to the Government amendment is that the Government are yet again adopting a blunderbuss approach. In an attempt to resolve the so-called dilemma of the Katsikas case, the Government are trying to take away all employment rights from the employee who decides that he will not have his contract transferred to a new employer. Clearly, other options are open to the Government.
Before the Government tabled the amendment, they should, as Lord Wedderburn suggested, at least have considered giving employees the right to claim notice or money in lieu of notice from their old employer. After all, in a transfer the old employer, or the transferor, brings the contract of employment to an end. That must be so, because he is ceasing to trade in a particular business. There is an end to or rupture in the employment relationship. In any other context, the employee would have the right to claim unfair dismissal, redundancy or at least the bare minimum contractual notice. Why do such rights not pertain in a transfer?
I am perfectly prepared to accept that we are dealing with a marginal case which will not involve many employees. If there was an endemic weakness in the regulations or the acquired rights directive, we would have
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found more examples of British workers saying that they did not want their contract to be transferred, but it has not happened. I may be wrong, but I cannot recall one case of a British worker arguing that before an industrial tribunal. Although the case may be marginal, it has a potential impact on the working prospects of many people. It is unnecessary and severe of the Government to say that employees in this position should have no rights.There is a case in law for allowing workers to be able to claim at least some of the employment rights to which they would otherwise be entitled. It is regrettable that the Government have taken the opportunity once again to parade their rather dubious European credentials. I am a strong supporter of Britain's membership of the European Community. We should recognise the fact that our only progressive and socially liberal employment measures in the past 14 years have been due to that membership.
I oppose the Government amendments. It is regrettable that the Government have taken the blunderbuss approach to solving a small problem, but it typifies their objectionable attitude to employment protection.
Mr. Graham : I intend to speak for only a few minutes. The hon. Member for Southend, East (Sir T. Taylor) mentioned a letter. When compulsory competitive tendering was introduced in my area, porters, drivers and others lost £50 a week. We must remember that, although competitive tendering may suit the Government, it does not suit employees. Employees should have the right to decide who their employer should be.
I have worked for various companies. I sold my labour to them and when the employer changed, I had the right to move on. If I worked for a good employer, which I did, who decided to sell his company, he did not sell me along with it. He may have sold his business, but he did not sell Tommy Graham the engineer. Tommy Graham had the right to say that he had helped to make the business go well but he did not want to work for the new employer because he had a terrible record in engineering. I am saying that folk are not slaves that one can wheel and deal with.
Mr. Michael Forsyth indicated assent.
Mr. Graham : I am obliged to see that the Minister is nodding his head in agreement, but some of our trade union legislation is the worst in Europe. It is beginning to look as if the Government wish to treat trade union members as slaves, and second-class people in Europe.
Surely a man or woman who has worked for a local authority or a similar organisation for 20 years has the right to say, "I do not want to go to that employer." That person may have good reasons, such as those that I have already mentioned. The new employer may have a bad industrial record with trade unions and a record of firing people that is second to none. The worker may say, "I would rather take the money and cut, and see if I can get a better job." Surely that is the right of all workers in this country.
Mr. Forsyth : I agree with the observations of the hon. Member for Renfrew, West and Inverclyde (Mr. Graham) on slavery. He is right to say that, if he were employed by someone and the company were sold, the employer had not sold him along with the company. Indeed, that seems to be the principal objection of my hon. Friend the Member for Southend, East (Sir T. Taylor) to the acquired rights directive, because where a business is transferred or
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sold, the employees are transferred, if they wish, and retain all the employment rights, including pay and conditions, whether or not the employer purchasing the company or the employer selling the company wishes that to be so. That is what the acquired rights directive has brought about, by means of the TUPE regulations.Mr. Graham : The Minister must realise that if someone works for 20 years in a company as an ordinary engineer, plumber, baker, butcher or whatever, he accrues 20 years of redundancy money, and if he is older than 50 he get more. Someone in the situation described by the Minister would be throwing up 20 years' work, and 20 years' accrued redundancy money. Come on, Minister, it is not fair.
Mr. Forsyth : I am not sure whether the hon. Gentleman has completely grasped the idea. If there is a transfer to a new employer, the employee's rights transfer to the new employer. If he chooses not to transfer to the new employer, clearly he has no continuing rights with the old employer. I agree with my hon. Friend the Member for Southend, East, and I am surprised at the hon. Member for Renfrew, West and Inverclyde, who is usually fairly concerned about value for money. For the Labour party to argue that people should be paid redundancy money because they are not prepared to continue to do the same job on the same terms and conditions is absurd. I do not belief that the amendment can have been tabled with any serious belief that it would be accepted. Indeed, the Labour party put forward no such proposal, but made a rather more moderate proposal, in the other place.
The hon. Member for Barrow and Furness (Mr. Hutton) and I had an exchange in Committee when we were discussing the matter, but clearly I did not get my point across to him. He sought to blame the Government for some of the difficulties that have arisen on the transfer of undertakings regulations and said that we had not handled the implementation of the directive properly. He said that the complaints coming from contractors and others involved in local authority work--I understand the concern of my hon. Friend the Member for Southend, East about that matter--were entirely due to the Government's implementation of the directive.
I refer the hon. Gentleman to the debates in the other place on 10 December 1981. It is recorded in columns 1485-86 that the Labour spokesman, Lord McCarthy, said :
"The last Labour Government presented"--
Madam Deputy Speaker (Dame Janet Fookes) : Order. Perhaps the hon. Gentleman has not recollected that it is not in order to quote from the other place unless it be from a Minister's statement. I rather think that he was not quoting a Minister.
Mr. Forsyth : I am grateful to you, Madam Deputy Speaker. You are right that I should not quote, so if I may I will tell the hon. Member for Barrow and Furness broadly what Lord McCarthy said. He said, as I recall, that the Labour Government had presented the new Government with a draft regulation and that the approach in the 1978 draft by the Labour Government was different from that of the Conservative Government. The noble Lord said that one of the differences was that the Labour version spelled out clearly that charitable bodies,
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Government Departments and local authorities would be excluded from the scope of the regulations. My hon. Friend for Southend, East is concerned--Mr. Galbraith rose --
My hon. Friend the Member for Southend, East is concerned about the interpretation of the European Court, which has been taken up by the Commission, of the phrase :
"not in the nature of a commercial venture".
That was the phrase that the noble Lord criticised as not having explicitly excluded local authorities from the scope of the regulations.
Mr. Galbraith : I well remember the Minister giving us that explanation in Committee. He will also remember that I said that the Labour spokesman whom he has quoted from memory said those words because no Labour Government, and no Labour Member, could conceive of a situation in which a local authority would wish to contract out its services. That is why it was not necessary to apply the regulations to such a situation. On the same basis, the Shops Act 1950 did not apply to Scotland. It was considered that we were such a religious nation that we would never open our shops on Sundays. We were wrong on that, and the premise behind the Labour Government's belief that it was unnecessary for the regulations to apply to local authorities was wrong, too. We did not support the principle then, and we do not support it now.
Mr. Forsyth : That is a nice theory, but unfortunately it does not stand up. I also seem to recall--of course, I cannot quote exactly the words that the noble Lord used, but no doubt the hon. Gentleman will look up the reference--that Lord McCarthy went on to say that the original draft by the Labour Government would avoid endless arguments about what constituted a commercial venture. In that sense he was right, and prescient about things to come.
Sir Teddy Taylor : It does not matter what the Labour party said or thought in 1981, or what the Minister thought in 1981. Surely we accept that all that is irrelevant. The Europeans have told us what the facts are ; what people think does not matter. The Europeans tell us and we have to accept it, right or wrong, whatever was said in 1981. Does the Minister not accept that it is rather silly to be concerned about what Labour said in 1981? That does not matter. Democracy is effectively dead, and Europe will tell us what the facts are.
Mr. Forsyth : On that basis, presumably we are all wasting our time. It matters what the hon. Member for Barrow and Furness said, because I have to reply to him. He was blaming a Conservative Government for having made a mess of the implementation, so it is entirely appropriate for me to explain what view the Labour Government took.
Mr. Hutton rose --
Mr. Forsyth : I was just about to deal with what my hon. Friend the Member for Southend, East said, because I thought that it mattered and that I ought to respond to it. Nevertheless, I shall give way to the hon. Gentleman.
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Mr. Hutton : I am grateful to the Minister for showing his usual courtesy in giving way. Does he not admit that, throughout the 1980s, Conservative Ministers in various Departments, especially the Department of the Environment and the Department of Employment, made a great fuss about the fact that the regulations would not apply to privatisations and competitive tendering, only to be told in the 1990s by the European Court of Justice that they had applied all along?
Mr. Forsyth : No, I do not agree at all. I am surprised that the hon. Gentleman should say that, because he said that he had read the speech that my hon. Friend the Member for Southend, East made in 1981. I do not have that in front of me, so I cannot quote it, but I shall rely on my memory. I think that the Minister at the Dispatch Box at that time was my right hon. and now noble Friend Lord Waddington, and that in response to my hon. Friend's speech he made it clear that the TUPE regulations as such would apply to local authorities. My hon. Friuld. The hon. Member for Barrow and Furness looks puzzled. I realise that this explodes his argument, but he can go to the Library and look up the words, by which, no doubt, he will be persuaded.
My hon. Friend the Member for Southend, East asked a number of questions, most of which did not fall within my area of responsibility.
Mr. George Foulkes (Carrick, Cumnock and Doon Valley) : It has never stopped the Minister in the past.
8.30 pm
Mr. Forsyth : The hon. Gentleman may say that, but I become more conservative and more cautious as I grow older.
My hon. Friend the Member for Southend, East expressed some serious concerns that I know are held outside and inside the House. I will ensure that my right hon. Friend the Secretary of State for the Environment notes those points and that my hon. Friend receives a proper reply, especially about local authority competitive tendering and the case in Eastbourne.
My hon. Friend expressed concern about the way in which the law has been changed beyond what was originally intended by a series of judgments by the European Court. I agree that there has been a significant change in the meaning of the law. The Government believe that the acquired rights directive should be amended and we will continue to argue that, because it cannot be in the interest of value for money to restrain the ability to carry out competitive tendering fairly in the interests of the taxpayer.
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