| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Lea of Crondall: My Lords, so many points have been made on the two major amendments that all we can say at this stage is that, as the Minister said, the review is intended to be wide-ranging and nothing will be excluded from it. To that extent the review must go into the fundamentals of the main thrust of the two main amendments. Some of the more radical suggestions put forward may not prove to be practicable when looked at in depth. But the review is a good opportunity to examine them.
My noble friends Lord Wedderburn and Lord McCarthy have gone deeply into the principles of the nature of the contract of employment. Suffice to say the Minister indicated that the review will take on board the wide range of suggestions made. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 122 not moved.]
Schedule 7 [Minor and consequential amendments]:
Lord Sainsbury of Turville moved Amendment No. 123:
- Page 76, line 31, at end insert—
The noble Lord said: My Lords, in moving Amendment No. 123 I shall speak also to Amendments Nos. 128 to 131. These technical amendments to Schedule 7 simply ensure that the appropriate minor and consequential amendments concerning statutory paternity and adoption pay are made to the Social Security Administration Act and the Employment Rights Act.
Amendment No. 123 rectifies an oversight by inserting reference to statutory paternity and adoption pay into the part of the Social Security Administration Act that deals with some of the finer administrative details. This amendment will enable us to make clear in regulations some of the minutiae of how claims and payments are administered, as existing references in the Act already enable us to do for statutory maternity pay. For example, it will enable us to specify in regulations that payment calculations involving fractional amounts are rounded to the next whole pence.
The remaining amendments in the group put right inaccuracies that have crept into a few of the paragraphs that amend the Employment Rights Act. I ask noble Lords to accept the amendment.
On Question, amendment agreed to.
Lord Sainsbury of Turville moved Amendment No. 124:
The noble Lord said: My Lords, in moving Amendment No. 124, I shall speak also to Amendments Nos. 126 and 132 to 134.
I advised the Grand Committee that the Government would be making changes in connection with Clause 47 of the Bill concerning flexible working. These amendments by the Government concern those changes, comprising an exemption regarding the Armed Forces and provision for the Advisory Conciliation and Arbitration Services (ACAS) to provide binding arbitration in cases where the employer and employee are unable to agree. It is therefore appropriate that they are grouped together and I shall speak to all five as one.
Amendments Nos. 132 to 134 relate to the proposed exemption of the Armed Forces from the flexible working provisions. As was explained in Grand Committee, the Bill as currently drafted applies those provisions to the Armed Forces. However, all members of the Armed Forces are in a unique position of being liable to be deployed operationally at little or no notice if national interests require it. Those unique working conditions make it impractical to apply long-term flexible working arrangements to service personnel as envisaged in this new right to apply for flexible working. Accordingly, we concluded that the new provisions should not apply to them.
It is worth noting that the Armed Forces will continue to seek to comply with the spirit of the legislation, subject always to overriding operational requirements. They fully recognise the benefits of flexible working to individuals and their organisations.
Amendments Nos. 124 and 126 provide for ACAS conciliation and an ACAS binding arbitration scheme for disputes concerning flexible working. The main priority of the flexible working provisions is to foster dialogue between parents and employers in order to find a flexible working pattern to suit them both. As part of this commitment, we always intended that there should be a binding arbitration scheme prepared by ACAS to deal with disputes regarding requests for
The provision for a scheme relating to flexible working will also help to ensure that as few cases as possible end up at an employment tribunal. Because the arbitration is binding, those who opt to use the scheme also waive their right to have their case heard at tribunal.
I am aware that concerns were raised during Grand Committee as to the low take-up of the current ACAS scheme. As I explained then, it is too early to assess the success or otherwise of the scheme.
That said, I believe that the flexible working provisions lend themselves very well to an ACAS scheme. Disputes arising under those provisions will be relatively straightforward, concerning whether procedures have been contravened or if a decision by an employer to reject an application has been made on the basis of incorrect facts. These are essentially factual rather than legal issues.
Amendment No. 126 has the additional effect of ensuring that conciliation is also an option in the resolution of any disputes arising out of the flexible working provisions. Again, that is entirely consistent with the Bill's key approach of ensuring that alternative avenues of dispute resolution are available and contributing towards keeping employment tribunals to a minimum. I therefore beg to move this sensible and necessary amendment.
On Question, amendment agreed to.
Lord Sainsbury of Turville moved Amendments Nos. 125 to 134:
On Question, amendments agreed to.
Baroness Miller of Hendon moved Amendment No. 135:
The noble Baroness said: My Lords, in his response to the same amendment in Grand Committee, which was the last one to be called, the Minister began by saying that the debate on the Bill was,
For the benefit of those of your Lordships who have been following this matter with less than bated breath, or have not been following it at all, perhaps I can explain this very simple issue. Schedule 7 to the Bill deals with minor amendments to other Acts. Section 23 of the Employment Relations Act 1999 is described in its marginal notes as:
On 4th December 2001, at Question Time, I asked the Minister:
I asked the Minister in Grand Committee what this new constitutional device was, but of course he could not tell me. The only interpretation of "free-standing provision" has to be that the Secretary of State wants power to amend legislation by whatever means suit her, and by bypassing Parliament.
I invited the Minister to say whether putting announcements in the London Gazette or some obscure local paper would suffice. I suggested that perhaps a "free-standing provision" could be the amending of legislation by distributing leaflets via sandwich-men parading up and down Whitehall with their boards. Never mind posting an announcement on the Secretary of State's generally unread website, maybe she would simply open her office window and shout out the news.
This is a perfectly serious point. The Secretary of State is seeking power to amend legislation without—and I believe that it is without—parliamentary sanction. I know the Government keep on about this free-standing thing, but it is not appropriate. It is a dangerous precedent which should be decisively stamped on. In fact, I believe that this peculiar phrase had its origin when the draftsman became, in the words of William Gladstone,
I should like to think that, just for once, this arrogant government will admit that they made a minor mistake, and not try to bluster it away. I know that the noble Lord will say to me, because he always does, that there is some reason. But, on the number of occasions that I have spoken to or written to the noble Lord he has been unable to give me any answer at all, until all of a sudden, up came this free-standing thing, which is unheard of anywhere. None of my parliamentary colleagues has ever heard of it. So I say to the noble Lord, more in hope than expectation, I beg to move.
Lord Sainsbury of Turville: My Lords, Section 23 of the Employment Relations Act 1999 empowers the Secretary of State to extend the coverage of statutory employment protection rights by order to individuals not currently covered by them. Subsection (1) lists the legislation containing the rights in relation to which the power can be exercised. Subsection (5) permits the Secretary of State to make the extension to the legislation listed under subsection (1) in such a way as she thinks fit, whether by amending Acts, instruments or otherwise.
I shall now make a final attempt to explain the point to the noble Baroness. It is quite simple and really quite boring. I shall try to explain it again, but on condition that she removes the amendment and permanently withdraws it.
"( ) In section 5 (regulations about claims for and payments of benefit), in subsection (5) (application to statutory sick pay and statutory maternity pay) for "and statutory maternity pay" there is substituted ", statutory maternity pay, statutory paternity pay and statutory adoption pay"."
Page 77, line 33, at end insert—
"In section 212A(1) (claims and proceedings to which ACAS arbitration scheme applies)—
(a) after "tribunal" insert "under, or", and
(b) after "contravention of" insert—
"(za) section 80G(1) or 80H(1)(b) of the Employment Rights Act 1996 (flexible working),", and
(c) in paragraph (a), for "the Employment Rights Act 1996" substitute "that Act"."
Page 77, line 34, at end insert—
"The Employment Tribunals Act 1996 is amended as follows."
Page 77, line 35, leave out paragraph 21 and insert—
"In section 18(1) (claims and proceedings to which provisions as to conciliation apply)—
(a) in paragraph (b), after "168," there is inserted "168A,",
(b) in paragraph (d)—
(i) at the beginning there is inserted "under or", and
(ii) after "28," there is inserted "80G(1), 80H(1)(b),", and
(c) in paragraph (f), at the beginning there is inserted "under or".
Page 77, line 37, at end insert—
"In section 19 (conciliation procedure), at the end of paragraph (a) there is inserted "and"."
Page 78, line 1, leave out "12A" and insert "12ZA"
Page 78, line 2, leave out "12B" and insert "12ZB"
Page 78, line 9, after "tribunal)," insert "in subsection (1),"
Page 79, line 7, leave out "substituted" and insert "inserted"
Page 79, line 28, after "192(2)" insert "(e)"
Page 79, line 28, after "of" insert "Part 10 of"
Page 79, leave out lines 30 to 33 and insert ", after "103" there is inserted ", 104C"."
Page 81, line 15, at end insert—
"In section 23(5), omit the words "or otherwise""
"liable to end with a whimper, rather than a bang".—[Official Report, 22/4/02; col. CWH 549.]
I inform the Minister that I do not introduce amendments for fun as jokes, to waste time, or for anything other than proper and serious purposes. This one has such a purpose. If the Minister had treated our previous discussions and our subsequent correspondence with proper seriousness, instead of as a joke, perhaps he would not have been so dismissive of what is a perfectly proper amendment, to which it is clear that he has no answer.
"Power to confer rights on individuals".
Subsection (5) states:
"An order made under this section may make provision in such way as the Secretary of State thinks fit, whether by amending Acts or instruments or otherwise".
Your Lordships will note the words "or otherwise" which the amendment seeks to omit.
"Can the Minister tell the House what the word 'otherwise' means in this context? Does it mean that the Secretary of State would be able to bypass Acts of Parliament or statutory instruments?".—[Official Report, 4/12/01; col. 702.]
The Minister frankly admitted that he could not explain what the words "or otherwise" meant, and offered to write to me, which in due course he did.
"He sent me round a note, and here is what he wrote".
I shall quote it verbatim, because I want your Lordships to get the same full flavour of it as I offered the Grand Committee. He said:
"The use of 'or otherwise' were intended to ensure that an order made under Section 23 could also apply to rights to individuals by means of a free-standing provision rather than by an amendment".
He continued:
"This was simply to give the Secretary of State the flexibility to extend rights in the way that seemed best from the drafting point of view. The words do not extend her powers in any way".
There are only two ways to amend an Act of Parliament—either by another Act of Parliament or by a statutory instrument. There is absolutely no such thing as a "free-standing provision".
"inebriated with the exuberance of his own verbosity".
He just stuck on the extra two words for no reason except mere prolixity. Any government, except perhaps this one, would say that this was a drafting error and would not try to attempt to justify it with meaningless gobbledegook about free-standing provisions. The Minister told the Grand Committee that. He said:
"The noble Baroness's amendment would simply take away the current flexibility for the Secretary of State to extend rights in a way that is best from a drafting point of view".—[Official Report, 22/4/02; col. CWH 550.]
He has certainly got that right. I want to take away the flexibility of the Secretary of State to amend legislation in a novel and previously unheard of way that the Minister did not—and, I suspect, cannot—explain. I do not believe that we have yet reached the state in this country where we can be governed by mere ministerial decree, which in fact is what "or otherwise" allows. The more the Minister continues to try to defend the indefensible and is unable to explain what is clearly the inexplicable, the greater the suspicion that the Government now wish to seize on a slip of the draftsman's pen and to create what I have just described as a dangerous precedent.
7.45
Next Section
Back to Table of Contents
Lords Hansard Home Page