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Baroness Miller of Hendon: My Lords, this really is a success! I began by saying that perhaps the noble Lord, Lord McIntosh, would find a way around the problem. I am sorry that the noble Lord, Lord Razzall, is on the wrong side again, but what can I do about that? We shall look very carefully at what the Government bring forward at Third Reading. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 2 [Short title, commencement and extent]:
Baroness Miller of Hendon moved Amendment No. 2:
- Page 1, line 18, leave out subsection (2).
The noble Baroness said: My Lords, I am speechless, really. As noble Lords know, the first amendment was designed to stop employers having to deal with someone who wants to refer to a matter which goes back over a long period.
This second amendment is very much for the benefit of the employee. I am totally even-handed on this side of the House. This amendment is intended to remove from the Bill the provision that postpones the operation of the Act until two months after it is passed. When I proposed this amendment in Committee the Minister argued that he accepted that it was intended to be helpful. The noble Lord, Lord Sainsbury of Turville, said that he had the greatest sympathy with
me for wanting to ensure that the employee was entitled to receive his money immediately and not have to wait two months. But the noble Lord had checked with the Cabinet Office, which said it was the custom that the provision did not apply until after two months. Therefore, as a man of custom—he told me this outside the Chamber but indicated more or less the same inside the Chamber—he did not want to change the custom if it was not necessary to do so. What he actually said in the Chamber was that,
- "Bills commence two months after Royal Assent, unless there are pressing reasons for bringing the Bill into force more rapidly".—[Official Report, 9/1/03; Col. 1105.]
At that time I described the amendment as "probing". I wanted to see what possible explanation there could be for making an employee wait two months. When I argued the case in Committee—strongly—I made the point that in any event there was a mistake in the original drafting and therefore it ought to be rectified and enacted immediately.
I took it upon myself to check this matter in the Library. Francis Bennion, in his Statutory Interpretation (4th edition, 2002)—it is therefore up to date—said,
- "The commencement date may be the date of passing of the Act, or a date specified or indicated in the Act, or a date specified in a commencement order made by a Minister or other functionary".
Interestingly enough, an investigation carried out in 1979 by a Statute Law Society working party looked at 105 public general Acts passed between 1st January 1978 and April 1979—a period of 14 months—to ascertain when Acts usually come into force. They found that 41 Acts came into effect on the exact date of the passing of the Act; 12 Acts came into force on a date specified in the Act; and 14 Acts came into force on the expiry of a period of one, two or three months after passing. I understand that the Minister may say that that investigation was carried out in 1978 and 1979 and that the custom now is that Acts commence two months after Royal Assent, as he said in Committee, but I asked the Library to check a little further.
The noble Lord, Lord Razzall, made the point in regard to my first amendment that employees should be able to claim their entitlement and to have it backdated, however far. Equally, I am sure that he would not want employees to have to wait for their money if it is not necessary.
The Education Act 2002 was enacted immediately; the Anti-terrorism, Crime and Security Act was enacted immediately; the Armed Forces Act immediately; and the Freedom of Information Act immediately. Those Acts were enacted in 2000–01. The Access to Justice Act was enacted immediately, as was the Northern Ireland (Elections) Act 1998. The Minister may say that there were pressing reasons for those Acts to be enacted immediately and that we can
forget custom in those circumstances, but I believe that an employee who is underpaid and wants to claim his money back now should be able to do so. I beg to move.
Lord Razzall: My Lords, I do not always disagree with the noble Baroness. On this occasion I agree with her.
Lord McIntosh of Haringey: My Lords, again, we cannot all win. Of course the noble Baroness, Lady Miller, is right. It is possible for an Act to come into force on Royal Assent—and that often happens—but the established procedure is that unless there are vital reasons for bringing a Bill into force more rapidly, we give those concerned with the Bill—in this case it is both business and employees—a reasonable opportunity to see and understand the implications of a new Act before it comes into force. That is the only reason for delaying it for two months.
However, there is another reason for not worrying about this Bill being brought into force two months later—and that is that it allows enforcement officers to issue notices in respect of pay periods ending before it comes into force. There is therefore no disadvantage whatever in that two-month delay. Past money owed to workers can be recovered whether the Bill comes into force, say, in March or May of this year. Under those circumstances, and in light of the fact that it is true that this is a conservative kind of argument—the Cabinet Office advised us that this was the right thing to do and we have to go back to the Attorney-General and Legislative Programme Committee to effect a change—and particularly in view of the fact that nobody loses by this delay, I hope that the noble Baroness will not press her amendment.
Baroness Miller of Hendon: My Lords, after such a kind explanation, how could I be so ungracious? As long as I have the Minister's absolute reassurance that the delay will not interfere with an employee's rights— I am sure that is correct—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 3:
- Page 2, line 2, at end insert—
The noble Lord said: My Lords, before I move Amendment No. 3 I should apologise to the noble Lord, Lord Blackwell, for not responding to his point on benefits. In fact I cannot respond; I do not know the answer. However, I do not believe it to be relevant because the issue in this Bill concerns records of employment. That does not necessarily apply to benefits. However, I shall write to the noble Lord on that issue.
Amendment No. 3 is a technical amendment dealing with devolved powers which have been requested—too late for the Committee stage—by the Scottish Executive in order to exempt agriculture in Scotland from the provisions of the Bill. Employment is a reserved matter while agriculture is devolved for Scotland and Northern Ireland. In addition, the agricultural minimum wage has been in place throughout the United Kingdom for more than 50 years.
The way the present legislation works is that Schedule 2 of the National Minimum Wage Act 1998 made a number of amendments to the Agricultural Wages Act (Scotland) 1949, to incorporate some of the provisions of the national minimum wage into the agricultural minimum wage. It is clear that the operation of the agricultural minimum wage in Scotland is a matter for the Scottish Executive.
It had two options. The first was to propose a Sewel Motion, which would have allowed Westminster to legislate on this matter even though it is devolved. Before Christmas the Scottish Office informed us on behalf of the Executive that that is what it planned to do. That is why, when we presented the Bill to the House, we covered the agricultural minimum wage in Scotland as well as the rest of the United Kingdom.
However, the Executive has now decided that it does not wish to propose a Sewel Motion and intends to lay parallel independent legislation covering Scottish agriculture in the Edinburgh Parliament. It has asked us to amend our Bill to exclude Scottish agriculture from its scope.
It is not a pretty amendment. I do not claim it is. Anything which has to rely on disregarding matters in the Interpretation Act will never be beautiful. But, in simple terms, it ensures that the provisions in the Bill will not be carried across into the Agricultural Wages Act (Scotland) 1949. It does not affect the existing structure of the national minimum wage or agricultural wages legislation. All it means is that the Scottish Executive will need to introduce parallel legislation to tackle the difficulties we have encountered and to carry across the provisions of this Bill into Scottish agriculture.
The situation is the same in Northern Ireland. But while the Stormont Assembly is temporarily suspended, the Department of Trade and Industry has confirmed with the Northern Ireland Office that it is content for the Bill to cover agriculture in Northern Ireland. I beg to move.
Baroness Miller of Hendon: My Lords, I want to thank the Minister for the courtesy of giving me advance notice of the amendment. We certainly do not object to it, but I want to ask him one question. We note the assurance in the letter, and in what he has now said to the House, that the Scottish Parliament will pass independent parallel legislation. However, can I take it that the word parallel means identical, so that
"(3A) But, notwithstanding section 20(2) of the Interpretation Act 1978 (c. 30) (construction of references to other enactments), the reference in section 1 to section 19 of the National Minimum Wage Act 1998 (c. 39) shall be taken not to include a reference to that section as applied by section 3A of the Agricultural Wages (Scotland) Act 1949 (c. 30)."
11.30 a.m.
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