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Lord Goodhart: I have considered this matter very carefully. It is obvious that any introduction of hearsay evidence into criminal proceedings—and these are plainly criminal proceedings—where it was not available before is a matter that needs to be looked at very carefully. Nevertheless, having looked at the matter, I recognise that the introduction of hearsay evidence is solely in relation to restraint orders. It does not apply to the evidence on which the relevant conviction is based, nor does it apply to the evidence on the basis of which the confiscation order is obtained. In those circumstances I do not see any reason to object to the amendment.
On Question, amendment agreed to.
Clause 68 [Applications and appeals]:
Lord Bassam of Brighton moved Amendment No. 69:
- Page 43, line 15, leave out "is authorised to do so by" and insert "falls within subsection (2A).
The noble Lord said: These are fine-tuning amendments. They tidy up Clauses 68 and 222, which set out the conditions under which an accredited financial investigator may apply for a restraint order.
The clauses as currently drafted have a rather odd effect—that is, that a senior accredited financial investigator may authorise another accredited financial investigator to apply for a restraint order but may not apply for one himself or herself. The amendments remove that anomaly. We do not like anomalies in your Lordships' House. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendments Nos. 70 to 72:
On Question, amendments agreed to.
Clause 68, as amended, agreed to.
Clause 70 [Committal by magistrates' court]:
[Amendments Nos. 73 to 75 not moved.]
Lord Grocott: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Returned from the Commons agreed to with a privilege amendment; the amendment was considered and agreed to.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]:
The Deputy Chairman of Committees (Lord Brougham and Vaux): I do not think there is any need to remind the Committee that there are no Divisions and Members of the Committee should speak standing. If there is a Division in the Chamber, the Member of the Committee who is speaking should stop as soon as possible and we shall adjourn for 10 minutes to allow Members of the Committee to vote.
Baroness Miller of Hendon moved Amendment No. 233:
The noble Baroness said: Clause 49 empowers the Secretary of State to make regulations for the benefit of employees working for a fixed term as distinct from employees working for an indefinite term. This is despite the fact that an employee working on an indefinite term contract may have considerably less security of tenure than one working for a fixed term.
For example, someone may be employed for a fixed period of six months perhaps to stand in for someone who is taking maternity leave. However, the fixed-term employee may be subject to dismissal on a month's notice, or a period of notice determined by statute according to the length of his service with that employer.
People enter into fixed-term employment for a variety of reasons ranging from necessity to personal choice. The fact is that fixed-term employees are not necessarily the downtrodden, exploited group of workers which the EU seems to believe need special protection as evinced by Directive 99/70/EC mentioned in this clause.
To the contrary of what I have just said, it is equally true that some employees on fixed terms are treated less favourably than their colleagues working on indefinite contracts. It is also true that some unscrupulous employers may use the device of employing workers on a series of consecutive fixed-term contracts in order to avoid having to give the employee benefits that accrue for long service. It is against this sort of abuse that this clause is intended to work.
The sort of philosophy that seems to permeate Brussels in the social engineering that their directives often generate—directives eagerly adopted and, I have to say, gold-plated here—is that all employers are wicked capitalists (and I hope I have said enough in the days leading up to now to suggest that not all employers are that way at all) grinding the faces of the poor who must be protected by the paternal bureaucrats. It reminds me of the slogan in Animal Farm,
Whatever the rights and wrongs of the philosophical approach by the regulators to fixed-term work, there is one category of fixed-term employee who does not need any special protection or special privileges to give him equality with his indefinite-term colleagues. That is a fixed-term employee who has been offered permanent employment by his employer.
The amendment sets out stringent conditions for exception to operate. The offer must be in writing so that there is no doubt that the work has been offered and on what conditions; the work must be substantially similar to fixed-term contract; and the employment must be on substantially the same terms and conditions to the other employees whose work is of a similar nature.
In other words, what we are looking at is a fixed-term employee who is being offered to be upgraded, if that is the correct description, to permanent employment. I do not suggest that such an employee should be compelled to take up the indefinite employment. If he chooses not to do so for whatever personal reason, that is entirely a matter for him.
What the amendment does is to say that the fixed-term employee who is offered a permanent job has to make up his mind which type of employment he prefers and, if he chooses to stick to his fixed term, he cannot have his cake and eat it and enjoy the special privileges being accorded to fixed-term employees. I beg to move.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): The intention of the amendment seems to be that the regulations made under Clause 45 should not apply to fixed-term employees who have been offered suitable permanent employment at any point during their employment and refused the offer. This would mean that the provisions in the regulations limiting the use of successive fixed-term contracts would not apply. However, the other provisions in the regulations—for example, the right to be informed of permanent vacancies—would also not apply. An employer would therefore be within his rights to continue to employ the fixed term employee on an indefinite number of successive fixed term contracts. That would be the case even when a fixed term employee decided, at some time after he had been offered and refused permanent employment, that he would after all prefer a permanent job in the organisation.
The directive requires us to prevent the abuse of successive fixed term contracts; the amendment could allow abuses of such contracts. As such, it could well mean that we would be unable to meet the directive's transposition requirements. The directive applies to all fixed term employees (with a few specified exceptions) regardless of whether they wish to be in fixed term or permanent employment.
The intention of the amendment may be to protect those fixed term employees who command better remuneration packages as a result of their fixed term status. The draft regulations stipulate that where a fixed term contract is renewed in breach of the limitation on successive fixed term contracts, it is to be regarded as a contract of indefinite duration. The regulations do not require that the employee must accept the terms of other permanent employees doing similar work in these circumstances just because his contract is to be regarded as permanent. There is nothing in the regulations that would require a fixed term employee to accept a lowering of his remuneration package as a result of permanent status.
The abuse of successive fixed term contracts must be prevented, yet it is also important that employers and employees are able to enter into contracts that suit their needs. Fixed term contracts are used in a variety of sectors, ranging from teaching to transport.
The mechanism in the draft fixed term regulations provides flexibility for employers and employees by allowing the use of fixed term contracts beyond the statutory limit where their use is objectively justified. The limit can also be varied by collective or workforce agreements. That mechanism is therefore sufficiently flexible that employer and employees can vary the limitation on the use of successive fixed term contracts where that will suit their particular needs better.
I turn to the other aspect of the point raised by the noble Baroness, Lady Miller. The draft regulations need not allow highly paid fixed term employees to have their cake and eat it by obtaining permanent employment on better terms and conditions that were designed to compensate them for the non-permanent nature of their work. Terms and conditions of employment are for negotiation between employers and employees. Employers will still be able to negotiate alterations to contracts with their employees.
I hope that the noble Baroness is satisfied with that explanation and ask her to withdraw her amendment.
(2A) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—"
Page 43, line 18, leave out "or"
Page 43, line 25, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A)"
Page 43, line 33, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A)"
House adjourned at thirteen minutes before ten o'clock.
Page 49, line 33, at end insert—
"( ) This section shall not apply to a person in fixed-term employment who has been offered in writing by his employer permanent employment of a substantially similar nature to his fixed-term employment on substantially similar terms and conditions to those of other permanent employees whose employment is of a similar nature."
"four legs good, two legs bad",
or, in this context, employees are always good and employers are always bad.
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