Natascha
Engel: I do not entirely disagree, but the hon. Gentleman
must also recognise that that is just politics. It might be a bit
annoying and sometimes really painful, but havoc is politics—and
legitimate politics, too, even if annoying. We must also recognise the
difference between serious extremism, which the hon. Gentleman was so
passionately angry about, and xenophobia and racism, both of which the
BNP, as a political party, represent, which we all hate fundamentally
and which are, importantly, fundamentally anti-democratic. The
mainstream political parties, as well as trade unions, are democratic
organisations. Again, that is another point that we must
recognise. We
have also recognised in our debates, in terms of freedom of association
and freedom of speech, that there are big political parties and trade
unions. Those points have been raised time and again during our
sittings. Freedom of association and freedom of speech are fundamental
to democracy, and we all support those things. It is important to
remember that this is about members in membership
organisations—trade unions and mainstream political
parties—having the right and the ability collectively to
determine the rules
of those organisations, as well as collectively to change them.
Extremism absolutely undermines those democratic principles. If a trade
union or a political party decides collectively that it finds extremist
views unacceptable—not just in principle, but as part of the
ethos of the organisation—it should be within the rights of
those organisations to expel people with those views. As my hon. Friend
the Member for Hastings and Rye said, if no hardship is suffered as a
result—there is no longer a closed shop—that should be
within the rights of those
organisations. As
the hon. Member for Northampton, South mentioned earlier, if an
individual’s beliefs run so contrary to the
organisation—in this case, a trade union—that they
undermine everything that it represents, he or she should go. I support
their going. The proposal is trying to enshrine in law the ability for
a trade union or other organisation to get rid of a person if the
organisation has collectively decided and judged that they are contrary
to everything that it represents. Another fundamental point is that the
ECHR’s decision on this matter was all about transparency and
the ability to do that within trade union rules. That is all that I
want to say about that. The clause supports all the things that we have
been talking about today. Most members of the Committee agree that
these are fundamental democratic
principles.
Mr.
McFadden: My hon. Friend the Member for Hastings and Rye
is right on one point—whichever way people move on this issue,
somebody is ready to tell them that they have gone too far or not far
enough. That goes with the territory. To govern is to choose. Our
responsibility is to try to get this
right. The
thrust of the amendments is that there should be more conditions. The
question is whether we have gone too far in respect of this power, and
that is the judgment that we have had to make all the way through. I
said in my first comments this morning that the Government changed our
view as the debate went on in the other place. We canvassed two
options—a broader option, to which the hon. Gentleman is
encouraging us to return, and an option broadly in line with the
clause as it is now. On balance, we have taken the view that although
both those options would meet the legal requirement to legislate in
line with the ECHR judgment, we should give unions the power that the
judgment recommends. However, there was also a strong case for due
process and safeguards in the exercise of the power, and that is what
the clause tries to do. Hon. Members on both sides of the Committee
will have their views on whether it does so
perfectly.
Mr.
Baron: I appreciate that the Government are not in an easy
position and that finding the right compromise is difficult, but will
the Minister, for the sake of clarity, give us his definition of a
political
party?
Mr.
McFadden: For me, a political party is the kind of
organisation that I joined. It is no more necessary to define that now
than it was when the hon. Gentleman’s party introduced the 1993
provisions and felt no need to enshrine such a definition in
law.
Mr.
Baron: For the purposes of the Bill, some regard clearly
has to be given to the term, “political party”. Will the
Minister give us his definition of that
term?
Mr.
McFadden: I am not sure why the hon. Gentleman feels that
it is more necessary to define that term today than it was when the
Government whom he supported introduced their legislation, which made a
distinction between party and conduct that had not been in previous
legislation. We
should not lose sight of the safeguards, which we have discussed one by
one and which are set out in proposed new subsections (4G) and (4H).
They state that a decision to exclude or expel should be taken in
accordance with the union’s rules and that it should not be done
unfairly. We have been over the point about exceptional hardship.
“Fairness” is defined as notice of the proposal to
exclude or expel being given to the person with reasons and there being
a fair opportunity to make representations, which should then be
considered fairly. Most of us would recognise that as being due process
that allows somebody a legitimate voice in a decision of this kind.
This is delicate territory. We have to legislate with care and caution,
and we should do so in line with the Court’s judgment. The
Government have always taken the view that it was right to bring our
legislation into line with that judgment. As the debate has progressed
in the other place and in Committee, we have concluded that it is right
to do so in this legislation, with the safeguards that I mentioned
enshrined
there. Question
put and agreed
to. Clause
18 ordered to stand part of the
Bill. Clauses
19 and 20 ordered to stand part of the
Bill.
Clause
21Commencement
Mr.
McFadden: I beg to move amendment No. 20, in
page 18, line 16, leave out from beginning
to second ‘on’ in line 17.
The
Chairman: With this it will be convenient to discuss the
following: Government amendment No.
21. Government
new clause 8—Employment agencies and national minimum wage
legislation:
information-sharing. New
clause 3—Exchange of information between National Minimum
Wage and Employment Agency Standards
Inspectors— ‘(1) After
section 9(4)(a)(iv) of the Employment Agencies Act 1973 (c. 35) there
is inserted— “(v)
to a National Minimum Wage inspector of HM Revenue and Customs for the
purposes of the exercise of their respective enforcement functions
under the National Minimum Wage Act 1998 (c.
39).”. (2) After section
15(4)(b) of the National Minimum Wage Act 1998 (c. 39) there is
inserted— “(c)
may be supplied by, or with the authorisation of, the Secretary of
State to an inspector of the Employment Agency Standards Inspectorate
for the purposes of the exercise of their respective enforcement
functions under the Employment Agencies Act
1973.”’.
Mr.
McFadden: We move on to a different subject, which is
proposed in two very similar new clauses—new clause 3 and
Government new clause 8. Earlier on in our deliberations, we
talked—at least, I talked—about
the Government’s vulnerable worker enforcement forum, which has
met over the past year and considered a number of issues in relation to
the vulnerability of people at work and their capacity to report
abuses, and the enforcement agency’s capacity to act on those
reports. That is important in terms of the rights of vulnerable
workers, in terms of legitimate businesses, and in terms of the
taxpayer, who legitimately wishes to see the most effective use of
their funds in the enforcement of the law.
The
forum’s report, which was published in August, sets out a
programme to improve basic awareness of employment rights, to
facilitate and encourage the reporting of abuses and to take steps to
join up the workplace enforcement bodies and enhance their profile. One
key issue that the forum identified was the need for closer working
between the enforcement bodies. An important element of that is the
ability of the bodies to share information about non-compliance. That
is addressed in the new clause in my name and in that tabled by the
Liberal
Democrats. As
the forum recognised, there are currently barriers to effective
information sharing between some of the enforcement bodies, including
between those that enforce the national minimum wage and those that
enforce employment agency legislation. The Employment Agency Standards
Inspectorate can contact Her Majesty’s Revenue and Customs,
which enforces the minimum wage, about potential non-compliance with
the minimum wage only before it has undertaken an inspection when a
complainant has clearly stated that there is a minimum wage issue or
where that is clear from the complaint. Once an inspection has started,
the current legal position is that it would be an offence to disclose
information obtained during the inspection. In those circumstances, the
agency standards inspectors can only advise the complainants to contact
the minimum wage
helpline. Information
about compliance with the minimum wage does not always come to light
until the inspection is carried out, by which time it would be too late
to pass from one agency to another. Clearly, there would be value in
the inspectorate being able to contact HMRC after an inspection has
been carried out, rather than having two sets of inspectors working in
silos, where once they had started their work, they were not able to
communicate with one another. The converse is also true: the
restriction on minimum wage officers being able to share information
about breaches of the law with regard to employment agencies or details
of non-compliant employers represents a similar barrier in the other
direction.
The minimum
wage enforcement team at HMRC visited 122 employment agencies last year
during the course of its national minimum wage enforcement. Of those,
30 were found to be non-compliant. Those 30 agencies may be
non-compliant in other ways too, so this is valuable and important
information sharing. There is really only one difference between the
two clauses dealing with this issue. The new clause in the name of the
Liberal Democrats deals with the particular bodies I mentioned in my
remarks, that is HMRC and ASI. The new clause in the name of the
Government deals with the Acts, which in terms of future-proofing,
should give us a little more flexibility to ensure that, were we to go
down that road, even if the bodies enforcing the provisions under these
Acts change in the future, the information-sharing permission which we
seek to gain through this new clause could
continue.
2.15
pm Much
of this information between enforcement bodies is not a matter of
principle. It is more to do with when the founding legislation for a
particular body was passed by Parliament. For example, the Gangmasters
Licensing Authority which was established a couple of years ago does
not have this gateway problem of information-sharing. No one has
suggested that the fact it does not have such a gateway is a problem.
We are seeking to bring other bodies into line with that. Nor do I
pretend—and it is important to stress this—that with the
passage of this new clause we will have entirely dealt with the
difficulty of information-sharing between different enforcement bodies
in the employment field. What we would be doing is taking the earliest
possible legislative opportunity after the publication of the
vulnerable worker enforcement forum report to address the issue in the
context of agency standards and minimum wage. Although I am grateful to
the Liberal Democrats for tabling the amendment that addresses the same
issue, I believe that operating on the basis of the legislation rather
than particular bodies may be a better way to do it and I hope that
hon. Members
agree. Amendment
No. 21 provides for a commencement by order of new clause 8 and is
therefore consequential to it. Amendment No. 20 deals with the passage
of time. In the dim, distant and hopeful past there was a possibility
that this legislation may have completed its parliamentary passage by
now and, as hon. Members will be aware, the Government take the view
that when bringing in new legislation which has an effect on employers
or businesses, that it is best to do that on one of two common
commencement dates so that employers know when changes will come into
force. Hon. Members will see that clause 21 as it stands at line 16
refers to 1 October 2008 as a possible commencement date. That date has
clearly passed. By my watch, that is 15 days ago and this amendment
simply takes account of that to ensure a commencement date that is in
the
future.
John
Hemming: I will not press new clause 3. It is not worth
arguing about the difference between it and new clause 8 which was
tabled
afterwards.
Mr.
Djanogly: Regarding Government amendment No. 21, well
spotted to the Minister or perhaps others in his team. As for
Government amendment No. 20, yes, I fully appreciate that employers
like to know when things are coming up.
My main
concern about new clause 8 relates to safeguards. Will the Minister
explain what safeguards he is proposing concerning the information that
will be kept? Will he please outline how such information will be
stored, how and when it will be transferred and when it will be
disposed of? The concern for small businesses is that once in the
system they will face arbitrary investigation as their details are
passed from one agency to another, perhaps on an ongoing basis or for
ever. Given the problems of lost data suffered by various Departments,
will the Minister assure me and small businesses that information will
be transferred only when absolutely necessary? I am interested to know
how the information transfers will take place. Will it be through a
centralised searchable database or by specific transfers on request? My
concern is that there may be additional administrative and financial
costs, when a simple phone call between investigators might be
adequate.
My final
concern is with the phrase “any purpose relating to that
Act”, which is used extensively throughout new clause 8. It
strikes me as the sort of broad umbrella term that could hide a host of
things. What safeguards are there to ensure that this requirement will
be complied with? Should we not have more definite parameters than
“any purpose relating to the Act” within the
Bill to ensure that the courts are not flooded with cases to
interpret that
phrase?
Mr.
McFadden: The hon. Gentleman is right to ask how the
clause will work and what we have in mind. As I said in my opening
remarks, when a minimum wage officer or agency standards inspector is
called to inspect an organisation because of a report, if they feel
that there is also a high risk of non-compliance in the other field of
law, they may tell the other enforcement body about it instead of two
sets of inspectors going in. Officers will be able to pass on
information about a business that is found to be non-compliant. I also
said such provisions operate without difficulty for the Gangmasters
Licensing Authority. As hon. Members may be aware, that body operates
in the field of agriculture and food production. The agency standards
inspectorate works in the rest of the
economy. I
would like to reassure the hon. Gentleman on the issue of data loss. We
are not talking about the mass transfer of personal data, but the
inspection of employment premises with a view to ensuring that they
adhere to the law. We are fully aware of the concerns that he raised
and we take them
seriously. New
clause 8 will not affect the legal restrictions that prevent agency
standards inspectors and minimum wage officers from disclosing
information to other bodies. The phrase “any purpose relating to
that Act” should not be too wide. It limits the use of the
information to the enforcement of the two pieces of legislation that
are specified. Both pieces of legislation contain criminal sanctions
for disclosure that is not for the purposes of the
legislation.
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