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Baroness Miller of Hendon: My Lords, I thank the Minister for his response. I am glad I had the opportunity of correcting on the record the point I made in relation to the Employment Rights Act 1996. I accept what the noble Lord said--that, nevertheless, the last Conservative government accepted that. But I wanted to make the point that it was a consolidating Act following a Labour Act, because when the Minister responded in Committee, he made a great deal of the fact that I was trying to reverse something that we, as a Conservative Government, had brought in. I do not agree with the Minister, but I know he responded with great sincerity.

In view of the fact that the regulations will be introduced by statutory instrument and there is a safeguard, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Power to apply Act to offshore employment]:

Lord Clinton-Davis moved Amendment No. 5:

Page 26, leave out line 28.

On Question, amendment agreed to.

Baroness Miller of Hendon moved Amendment No. 6:

After Clause 45, insert the following new clause--

Exclusion of disabled persons and employment for therapeutic purposes

(" .--(1) The Secretary of State may, after consultation with the Low Pay Commission, make an order exempting disabled persons from the provisions of this Act.
(2) An order under subsection (1) above shall provide for the issue of permits by the Secretary of State to those persons whom he believes to be disabled and may make provision for--
(a) the procedure for applying for and issuing such permits;
(b) the procedure for establishing the minimum wage to which each permit holder shall be entitled (being less than the single hourly rate prescribed under section 1(3) of this Act);
(c) the appointment by the Secretary of State of suitably qualified persons to assess such applications; and
(d) the procedure for appealing against a refusal to issue such a permit.
(3) No person shall be guilty of an offence under this Act in respect of an employee who holds a permit issued in accordance with an order made under this section.
(4) For the purposes of this section, a person is disabled if he is so affected by physical injury or mental deficiency or infirmity due to age or any other cause as to be incapable of earning the national minimum wage.
(5) A person whose employment is primarily undertaken for the purpose of therapy and whose employer is a non-profit-making organisation does not qualify for the national minimum wage in respect of that employment.").

The noble Baroness said: My Lords, I have to return to this amendment which was raised at both Committee and Report stages of the Bill, despite the fact that it was fully discussed on both occasions. I shall do so as briefly as possible because I do not wish to take up your

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Lordships' time with repetitive arguments, nor do I wish to put the Minister to the trouble of reiterating the responses that he gave.

Subsections (1) to (4) enable disabled individuals to make personal applications to be exempted from receiving the national minimum wage. I am talking about individuals, not wholesale exemptions of whole categories of disabled persons. In other words, I am not referring to all persons who may have lost a limb, have impaired sight or have one of the many other disabilities with which so many unfortunately are afflicted.

The difference between me and the Government on this clause is that the Government believe that the exemptions for which I am seeking to provide are discriminatory against disabled workers, whereas in fact I am trying to help them overcome one of the obstacles that may stand in the way of their obtaining a job. I repeat--and stress again because it is important--that nothing happens under this clause unless the worker wishes it to do so and unless he and he alone initiates the procedure. In other words, nothing happens unless the worker of his own free will wishes it to. The Government should not stand in the way of that free choice.

The procedure I propose is very stringent, so that even if a worker decides to apply for exemption, he must pass a stringent test to justify his request. The Secretary of State must make whatever regulations he deems appropriate and install whatever procedures he considers appropriate. I believe that he already has the machinery in place, utilised by the Department of Social Security for the purpose of determining whether a person qualifies for a disability allowance. I am not suggesting that the receipt of disability allowance gives automatic right to exemption. I repeat, every case must be the subject of an individual application by the person concerned and must be subjected to individual, independent scrutiny.

I ask the Government to think again before it is too late. Insistence on the rigid concept of universality for those who do not want it--persons who simply want a job, not necessarily for the sake of the wage--far from being discriminatory, may operate against those very persons the Government say they are trying to help.

That is not just my view. The Minister received a letter from the noble Lord, Lord Rix, who, without wishing to be drawn into what he saw as a political dispute, expressed doubts about the benefits of refusing to allow disabled persons exemption. That letter is the reason why I return to this amendment after the two previous debates on it. The letter throws an independent, non-partisan and non-political light on the matter.

When I say "non-political", I refer equally to the absence of the Government's political agenda and my party's views. It emerged that the letter of the noble Lord, Lord Rix, sent shortly before Report stage had not percolated through the ministry's postal system before the debate. The Minister therefore on that occasion had not received it. I gave him the copy that I had received and, despite his trip to Brazil immediately following the last stage, I hope that he has now had time to consider

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it. It is an independent assessment from an unbiased source, to which the government really ought to give serious and sympathetic consideration.

I will not take up your Lordships' time further by discussing subsection (5) which is to give exemptions to workers who are employed for therapeutic purposes--those who are working in hospital or in community homes or day centres--where the object of the work is not the wages but the medical benefit that the patient receives. I accept that some such so-called workers are not within the definition of this Bill, but some are, and what I am asking--for reasons that I fully explained to the Minister on both previous occasions--is that if they are genuinely employed, not by an unscrupulous employer but by a non-profit making organisation, they should similarly be exempted.

I seriously believe that had the Government's blueprint for this Bill not been that of universality, with no exemptions, then they themselves would have included a similar provision in the Bill, and I urge them to accept the amendment. I beg to move.

Lord Monson: My Lords, If the Government want to show that they are a caring government, they should accept this amendment. Let me try to reinforce the argument of the noble Baroness, Lady Miller, and my noble friend Lord Rix.

Consider one of the least demanding jobs in contemporary Britain--collecting trollies from the carpark of a supermarket and wheeling them back to the front of the store. That job requires no mental or arithmetic ability, no skill at dealing with difficult customers and relatively little physical strength. A totally illiterate adult could do the job, as could most children of 12. It is a perfect job for someone who wants to earn a bit of pocket money, feel useful, likes mixing with other employees or wants to work in the open air but, by virtue of disability, is too slow to do the job as effectively as a younger, fit person. An employer may not find him or her worth employing at £4 an hour, including employers' national insurance contribution, but just may find it worth employing them at £2.50 or £3 an hour, including contributions. What good would it do to deprive such an eager individual of employment opportunities?

4.30 p.m.

Lord Clinton-Davis: My Lords, the noble Baroness is quite right to say that this is a difficult, complex and highly sensitive matter. If I may say to the noble Lord, Lord Monson, the mere fact that we disagree--I hope that he will listen carefully to our views, which are not wholly in accord with his--does not mean that we are an uncaring government. There is not a necessary co-relation between that difference of view and what he had to say.

This is an extremely important matter. The noble Baroness is quite right, there has been some correspondence between us. Unfortunately, I had not received the letter by the start of this debate. I made thorough inquiries. Apparently it arrived in the office at about four o'clock that afternoon and it was not

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possible, through the machineries that are deployed, to bring it to my attention. In any event, I would not have been able to give it, there and then, the studious attention that it demanded. However, we have had an opportunity to exchange correspondence. The noble Baroness has had a letter from me today following my return; I think it is on the noticeboard. At all events, I signed it off soon after I returned to the office this afternoon.

I will endeavour to go through the points with some care, notably because the whole House appreciates the deep concern and commitment of the noble Lord, Lord Rix. He wrote to me, but not at the time that the noble Baroness thought; his letter arrived on the day of our debate last week.

The Low Pay Commission and the Government have given this issue a great deal of careful thought. We are at one as far as the principle is concerned; we all want to ensure that the right thing is done for disabled workers, including those with severe disabilities. There is no difference of opinion between us on that point. We believe, as does the Low Pay Commission, in the broad principle of ensuring equal treatment for disabled workers. My noble and learned friend Lord Falconer, when he spoke to this matter on Report, made it clear that it was absolutely fundamental that disabled people should not be discriminated against in the workplace.

When the Low Pay Commission consulted very widely on this matter with a whole host of organisations, including Mencap, which represented disabled people, the overall response was a strong welcome for the application of the national minimum wage to disabled people. The commission's report supports that principle by affirming that disabled workers should be treated in the same way as other workers in qualifying for the national minimum wage. We agree with the culture of social inclusion that it has emphasised.

As the noble Lord, Lord Rix, has indicated, and as the noble Baroness pointed out on Report, there are concerns that some individual employers of disabled workers might decide to discontinue offering them employment. That is the point that the noble Lord, Lord Monson, made a few moments ago. I prefer not to receive that message from the report of the Low Pay Commission; that is not what it found or anticipated. However, I do not deny that it is a possibility--just as the setting of the minimum wage at a level which was not sensible could begin to affect employment much more generally. We think we have avoided that position. We believe that employment will not be adversely affected, as indeed does the Low Pay Commission. We believe that the employment of disabled people will not be affected by the inclusion of this provision, but there may be some employers who will balk at it. I hope that employers who are prepared to offer employment to disabled or severely disabled workers will not see a national minimum wage at the proposed level as a reason to change their minds.

My noble and learned friend Lord Falconer emphasised last Monday when we debated this issue that there is a support mechanism in any event. There is the supported employment programme, which helps about

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22,000 people with severe disabilities to obtain or retain jobs in open employment, and government funding is being maintained at more than £155 million for 1998-99 for that programme. It is operated by the Department for Education and Employment. I am not able to go into all the details because it is the responsibility of that department. We shall monitor carefully what happens on the supported employment programme to ascertain whether appropriate help for disabled employees is available during the introduction of the national minimum wage.

Let me refer specifically to the letter from the noble Lord, Lord Rix. Arising out of that, the noble Baroness has asked two specific questions: first, whether arrangements for paying disabled workers below the rate of the minimum wage would be illegal. She has asked that on a previous occasion. The answer is yes, it would be, in just the same way as arrangements for paying any worker below the rate would be.

She also asked whether the function of the minimum wage is to lay down some rules at one end of the spectrum and not to rule out provision at the other end. I can only emphasise again that our whole approach is an inclusive one. It is not based on different rules for some workers and not others, and that includes disabled workers.

As to the amendment, the new clause would give the Secretary of State the power to exempt disabled persons from the national minimum wage after consulting with the Low Pay Commission; it appears to provide a power to exempt disabled persons as a class. Previous versions provided for an elaborate permit-granting machinery for individual exemptions. That would have been very bureaucratic and the noble Baroness has departed from that view.

We believe that the new clause is unnecessary. The power to exempt or provide a modified rate for descriptions of persons, including disabled persons, is already available in Clauses 3 and 4 of the Bill. It is also over-prescriptive. It requires consultation with the Low Pay Commission before making such an exemption or modification. The Government see no need to exercise such a power in the light of the very clear message from the Low Pay Commission.

The Government are committed to consulting on the regulations for implementing the minimum wage and we shall ensure that organisations dealing with disabled persons, including Mencap, are invited to respond. If following that consultation there were to emerge a radically different response from the organisations representing the disabled, we would certainly reconsider how to proceed. I do not expect that to be the case but I can give the House that clear undertaking on behalf of the Government.

The whole situation needs to be kept under review. I have already said that we will ask the Low Pay Commission to monitor and evaluate the impact of the minimum wage. Included in that will be the position of people suffering from disabilities who are in work. The

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amendment is unnecessary. It does not add to the powers already potentially available under the Bill. I hope that the noble Baroness will not proceed with it.

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