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Lord Howie of Troon: My Lords, that point has been put to me in the past; namely, that designers and architects working throughout the United Kingdom would be obliged to familiarise themselves with separate regulations. I find that very difficult. I spent many years as a civil engineer doing just that. I dealt with the different requirements in England and Scotland and in various other parts of the world. It does not cause the slightest bother. It is quite simple: one just reads the regulations and applies them.
Lord Sewel: My Lords, I am not at all surprised that my noble friend has heard that argument before. I very much suspect that those who wrote my brief for tonight wrote my ministerial predecessor's brief in 1992!
I was trying to set up an Aunt Sally which I would then knock down and say that it is an argument that has been advanced in the past. But I find it particularly unpersuasive. There are occasions and cases where it is quite legitimate to have different standards and regulations in different parts of the United Kingdom. As the noble Viscount, Lord Thurso, indicated in the context of a Scottish parliament, that kind of situation may arise more often and across a wider range of topics.
However, I say quite clearly that there have been recent amendments to Scottish technical standards and they have been relatively minor technical adjustments. They have not sought to bring about the harmonising down which my noble friend Lord Howie indicated.
The process of harmonisation of the building standards of England, Wales and Northern Ireland is a joint process. In a way it is intended to the extent that harmonisation is attractive. It is intended that the best aspects of each set of regulations are retained. I believe that harmonisation is very much a two-way process. It is our hope that the new approved document will lead to greater harmonisation with Scotland. I use that sense of direction quite deliberately. There may well be a case here for harmonisation to be towards the Scottish practice rather than in the other direction. In this brief contribution I hope that I have dealt with the points made.
The Earl of Courtown: My Lords, before the noble Lord sits down, does he agree with me that,
notwithstanding the comments he made about my speech as regards fire safety as opposed to fire regulations, they are inextricably linked?
Lord Sewel: My Lords, speaking on the basis of my knowledge and experience, I shall require notice of that question. I take the point. The contribution made by the noble Earl to the discussion was an important one. As I said, I shall come back to him in areas where I can assist. I hope that I have dealt with the various issues raised in the debate.
Lord Monkswell: My Lords, I hesitate to intervene. I believe that the House will be very glad to welcome the assurance given by my noble friend that the Government and our party, if I may put it on that basis, have no intention of reducing fire safety through the harmonisation of regulations. We have heard similar sentiments from the noble Viscount, Lord Thurso. We do not know which political party is going to be in control of the new Scottish parliament either initially or in the future. Is it pertinent at this point to ask for assurances from the noble Earl, Lord Courtown, speaking for the Conservatives, that his party will ensure that the regulations will not be harmonised downwards and that any harmonisation that that party seeks will be in an upward direction?
Lord Sewel: My Lords, it is not possible for me to reply on behalf of the noble Earl, Lord Courtown. As regards the point about control of the Scottish parliament, I say to my noble friend Lord Monkswell, ye of little faith. Let us deal with that issue somewhat later in the week.
Baroness Ramsay of Cartvale: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.57 to 8.30 p.m.]
National Minimum Wage Bill
Clause 10 [Worker's right of access to records]:
Baroness Miller of Hendon moved Amendment No. 69:
The noble Baroness said: In moving Amendment No. 69, I should like to speak to all of the amendments to this clause which stand in my name. I refer to Amendments Nos. 69 to 75 and 77 to 79. This clause involves a matter of major constitutional importance, one which seems to have been totally overlooked by the author of the clause. I do not say that in any recriminatory sense because my honourable friends in the other place also seem to have missed this point. The
The constitutional objection arises from the method by which the Government are proposing that that right is to be exercised. It is a method that is totally inappropriate for what is, after all, the pursuit of a civil claim for redress for a financial wrong. It begins with the employee issuing his own search warrant. In Clause 10(5) it is euphemistically called a "production notice". Who else can march into someone's premises without the intervention of a judge or a magistrate and conduct what amounts to a search? The answer is only the Customs and Excise in relation to VAT; the Inland Revenue in relation to certain aspects of income tax, corporation tax and PAYE, and the Department of Social Security in relation to national insurance records. All of those are powers conferred specifically by Parliament to protect the public revenue.
Under Section 18 of the Police and Criminal Evidence Act, the home of a person in custody for an arrestable offence can be searched without a magistrate's warrant. In the case of civil disputes and claims, there is a mutual right of inspection of documents, but that is in the process called "discovery", given by order of the court under the court rules. There is only one instance where claimants can obtain a unilateral right to inspect, copy and, indeed, impound documents and records from the other party--and that is pursuant to what is called an Anton Piller order. It is given ex parte by the judge without the respondent being aware of it. It is given only at the discretion of the judge where he is satisfied, from evidence on oath, that there is a risk that evidential documents may be destroyed or tampered with and that the interests of justice leave no alternative.
The order is hedged around with stringent conditions, of which I shall mention just some. The order has to be served on the respondent in the presence of a wholly independent supervising solicitor, experienced in handling Anton Piller orders, who has to see that the matter is dealt with in a proper manner. Where the premises to be searched are likely to be occupied by an unaccompanied woman, unless the supervising solicitor is a woman, one of the persons attending the service of the process must be a woman. The respondent is entitled to ensure that, except for a named person, nobody is present who could gain a commercial advantage from anything that he might see or read; and so on, and so on.
Perhaps I may repeat--it cannot be emphasised too strongly--that what the Government are proposing is that a person merely has to allege that he has a claim for a civil debt and he shall then have the totally unprecedented right to enter the premises of a third party, and then the right to stay there for virtually as long as he chooses while he conducts a search through that party's books and records. What the Government
Lord Falconer of Thoroton: I apologise for interrupting the constitutional flow, but could the noble Baroness identify where the "right" to enter premises comes from, where the "right" to stay in the premises comes from and why if documents are not produced, the remedy is not marching in; it is a complaint to an employment tribunal?
Baroness Miller of Hendon: If the noble and learned Lord will give me a moment, I shall find the appropriate provision in Clause 10. Subsection (1) states:
There is no indication of any other way in which the worker may gain access to the records. Indeed, subsection (8) states:
Subsection (9) then refers to the number of days involved.
As far as I can see, the clause suggests that the worker has the right to enter "the place" and to see the records. I repeat that subsection (8)(b) states:
Perhaps I may continue with what I was saying. What the Government have proposed in this case is that on 14 days' notice, the employee may march into the employer's business premises--the noble and learned Lord will not like what I am going to say next because my notes continue--and "ransack" his records. At any rate, it appears that the employee will certainly have a right to look through the records, possibly in front of a shop full of customers. The noble and learned Lord shakes his head, but that is what the clause states. It states that the employee can go into the premises and inspect--
Page 7, line 31, leave out subsection (1) and insert--
("(1) Subject to the provisions of this section, a worker shall be entitled, on written request, to be supplied by his employer with a copy of any relevant records within twenty-eight days of receipt by the employer of that request.").
"A worker may, in accordance with the following provisions of this section,--
(a) require his employer to produce any relevant records; and
(b) inspect and examine those records and copy any part of them".
"The place at which the relevant records are produced must be--
(a) the worker's place of work; or
(b) any other place at which it is reasonable, in all the circumstances, for the worker to attend to inspect the relevant records; or
(c) such other place as may be agreed between the worker and the employer".
"in all the circumstances, for the worker to attend to inspect the relevant records".
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