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Lord Tebbit: My Lords, I am grateful to the Minister for giving way. Which powers did the Secretary of State use when she released IRA terrorists to campaign for a "yes" vote in the referendum?

Lord Dubs: My Lords, my understanding is that they were not released permanently. Those were temporary release powers which she already has. In one case, release was on compassionate grounds; in other cases it was for the specific reasons to which the noble Lord has referred.

I have listened carefully to the views that have been expressed and I sense the opinion of this House. I am fully aware of the strong and sincere feelings which have been expressed. I shall ensure that the Secretary of State is made fully aware of the whole debate and the feelings that have been expressed. As I indicated, the Government do not intend to oppose the Motion.

8.47 p.m.

Lord Campbell of Alloway: My Lords, I shall be brief. I must be allowed to thank all noble Lords who have spoken in the debate, and in particular the noble Lord, Lord Dubs, for his humane and sensitive handling of this truly unfortunate affair. No noble Lord has spoken in opposition to the Motion. With the leave of

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the House, it is not profitable to discuss for the third time today the amendment of my noble friend Lord Tebbit; I should prefer to deal with it on Wednesday if it were tabled again.

I seek the common sense, composite wisdom of your Lordships' House which reposes with the Cross-Benchers and the Back-Benchers. I commend acceptance of the Motion.

On Question, Motion agreed to; and it was ordered that the Address be presented to Her Majesty by the Lords with White Staves.

National Minimum Wage Bill

8.50 p.m.

Further consideration of amendments on Report resumed on Clause 11.

Baroness Miller of Hendon moved Amendment No. 29:

Page 8, line 40, leave out ("shall").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 30 to 34. The mandatory sentence for anyone convicted of murder is life imprisonment. I do not know of any other penalty where the judge does not have some sort of discretion, even if it is only the power to take into account "special reasons" for offences like the road traffic offences. However, if I am mistaken and there are others, there are enough lawyers in this House whom I am sure will correct me on the point.

There are to be just two offences for which the judge has no discretion to take into account mitigating factors, extenuating circumstances or even the financial ability of the offender to pay the fine. One of those offences is murder; the other is thwarting the ambitions of the trade unions. In simple terms, the clause as drawn gives the employment tribunal absolutely no discretion whatever as to the penalty to be imposed on an employer who fails to produce records or to accord an employee his rights under Clause 10. The combined effect of the amendments is to do just that.

To give the employment tribunal some discretion, the combined effect of the amendments would make Clause 11(2) read as follows:

    "Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect and may make an award that the employer pay the worker such sum not exceeding 80 times the hourly amount of the national minimum wage (as in force when the award is made) as it considers just and equitable having regard to the employer's default".

If the owner of the struggling corner mini-market objects to the presence of the minder that the employee chooses to bring into his shop, then its owner is to be fined 80 times the national minimum wage--that is, £288--until the national minimum wage is increased, which I am sure it inevitably will be. Never mind that, due to the owner's lack of command of the English language, he did not understand the employee's rights under Clause 10(9)(b), and never mind that a fine of

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£288 means that the owner cannot meet his cash-on delivery commitments for stock, and loses a vast and probably ruinous amount of trade as a result.

At the same time as this happens, International Conglomerate plc fails to give access to the records of one of its employees within 14 days due to some bureaucratic blunder. It, too, is fined £288--that is less than it spends on paper clips in a year and less than it spends on flowers for the director's dining room in a month. Two offences committed inadvertently--but offences nonetheless--with vastly different financial consequences to the employers. At the same time, the owner of a sweat shop is caught paying a pittance in cash, with no records kept, to the illegal immigrants he employs under the threat of reporting their presence to the authorities if they complain. As no records can be produced, the employer is in breach of Clause 10(1)(b). For deliberately flouting the Act, this unscrupulous employer will be fined the same amount for each offence; namely, £288.

When we considered these amendments in Committee on 15th June, the noble and learned Lord the Solicitor-General explained that the reason why the Government did not want to give the employment tribunal any discretion was because the provision would,

    "enable cases to be handled much more swiftly and effectively in a tribunal, there will be no need for the tribunal to spend time considering specific amounts".--[Official Report, 15/6/98; col. 1412.]

I see that the noble and learned Lord the Solicitor-General was admitted to the Bar in 1974, long after the demise of the old Bow County Court. One of the many no doubt apocryphal stories told about that court was the occasion when a barrister arrived five minutes late and discovered that his case had been heard without him. When he complained, the usher said, "Well, you see Sir, we dispense with justice very quickly in this court." That is what the Government are saying should happen in these cases: in the interest of administrative expediency, employment tribunals should dispense with justice. How many cases are the government expecting anyway?

I spent 20 years as an active magistrate. No matter how long our list, we always felt it our duty to consider the penalty no less carefully than whether or not the defendant was guilty. A few extra minutes, sometimes less, is no burden to those exercising a judicial function. The Government are saying that, in the case of the inadvertent failure to produce a single sheet of paper or a delay perhaps caused by the illness of the one-man owner of a small business, there should be no mitigation of the penalty. The Government are saying that, contrary to the criminal law, the means of the defendant to pay a fine are not to be taken into account. The Act deprives the tribunal, exercising a judicial function, of any discretion to show mercy in appropriate cases--all in the interests of expediency, and a few minutes of its time.

In passing, I should just like to mention Amendment No. 43 relating to Clause 19, tabled in the name of the noble Lord, Lord Clinton-Davis. Of course we welcome any provision that will allow an employment tribunal to correct a mistake. We shall not object to that amendment

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when it is called. The pity is that the Government have not seen fit to frame the Bill so as to enable tribunals to avoid a different error altogether; namely, the error of committing an injustice because of a lack of discretion over the penalties.

The noble and learned Lord the Solicitor-General holds one of the most senior offices in our judicial system. He needs no permission from the Secretary of State to concede the point that I am making. On the contrary, it is the Secretary of State who, constitutionally, must be guided by his advice. The House of Lords is the highest court in the country. We cannot--we must not--send out a signal that justice is something that can be dispensed with in the interests of expediency. I urge the noble and learned Lord to use the discretion that he undoubtedly has and here and now agree to accept these amendments. I beg to move.

Lord Falconer of Thoroton: My Lords, we had a full debate on these identical amendments in Committee. In the meantime, my noble friend Lord Clinton-Davis has written to the noble Lord, Lord Monson, in response to particular points which he raised during that debate. I believe that a copy of that letter has been placed in the Library of the House.

I believe that I set out fully and clearly in that debate the Government's position on the making of awards under Clause 11. However, perhaps I may briefly go over the ground again just to indicate the Government's thinking on the matter. The amendments to Clause 11 require a change of wording from "shall" to "may". This is essentially a procedural clause. It concerns the failure of an employer to allow access to records, and the awards that can be made by employment tribunals in that event, as well as the period for bringing a complaint.

All the amendments in the group are directed towards that clause. As the noble Baroness rightly said, their overall effect would be to allow a tribunal to be more lenient to an employer who had not complied with his obligations to allow access to records under Clause 10. Indeed, the amendments would have that effect or would be ancillary to it.

Amendment No. 32 takes the proposed discretionary power a step further in that it gives the tribunal the option of awarding less than the full amount (which is currently set at 80 times the national minimum wage rate) to the worker, to be paid by the employer. Amendment No. 33 is linked with the discretionary notion as it would give the tribunal the right to consider what is a just and equitable award.

The noble Baroness is characteristic with her style. She makes this right to award 80 times the national minimum wage if somebody fails to comply with an order to produce documents appear parallel to the charge of murder. She says that it is similar in that respect and that it is the only offence in the country, apart from murder, where there is a fixed penalty. Perhaps I may make three points in that respect. The noble Baroness's argument is well put. However, I would submit that it is somewhat disproportionate. First, this is not a criminal sanction; it is a civil sanction for failure to comply with

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what we all agree is a necessary procedural right in relation to the minimum wage. Secondly, it is most certainly not alone in the way that such rights are enforced. By way of an example, I should point out to the House that there is a right to each employee to be told the reasons for his dismissal. If he is not given the reasons, then, assuming that the tribunal found the complaint well founded and all the procedural grounds had been gone through, it must award two weeks' pay to the employee. Again, that is a fixed amount. That is an incredibly sensible way of dealing with this kind of problem, rather than creating a whole series of discretionary matters which will be argued before employment tribunals. Far from being good for an employer, that would be bad. There would be some merit in what the noble Baroness had said if an unsensible or disproportionate amount had been prescribed for not complying, but with regard to the proposed present minimum wage the amount is £288. I appreciate that may be a significant sum for some people, but their remedy to avoid paying that sum is to comply with their obligations under the law.

The noble Baroness gave two examples of where that may cause problems. The first concerned a situation where--as she put it--an employee might introduce a "minder" into a shop whom the employer does not like. I think I responded to that point when I responded to the previous amendment. Secondly, there is the matter of someone who is unable to produce records within 14 days. A judgment has to be made about how long it takes to produce records. We take the view that most people--particularly small employers--will be able to produce wage records within 14 days if they have only one or two employees. Frankly, that seems a perfectly reasonable period of time within which to do that.

One can choose to impose an easy, sensible remedy which is easily obtained in the industrial tribunal and which is not disproportionately severe or, as the noble Baroness would have it, a remedy in an industrial tribunal dependent on submissions by both sides which would involve greater legal complexity and arguments before the tribunal. I think we have the balance right. We have indicated the importance of not complying but our remedy is not disproportionate and it is quick. Although we have considered carefully the proposals that have been made by the noble Baroness, in our view we have the balance right. I believe the more one thinks about it the more one recognises that. I hope that, in the light of the explanation I have given, the noble Baroness will feel able to withdraw her amendment.

9 p.m.

Baroness Miller of Hendon: My Lords, perhaps when I read the noble and learned Lord's explanation in detail I may agree with him. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 to 34 not moved.]

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Clause 13 [Appointment of officers]:

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