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The courts have developed a number of tests that examine an individual’s circumstances and consider all aspects of the relationship, including the reality of the situation, to establish an individual’s employment status. The amendment is looking to enshrine common law tests for employment status in statute. It would be difficult, and potentially very confusing, to attempt to cover all types of working arrangements in legislation, particularly in such a fast-moving, changing environment. Once a court judgment on a particular type of arrangement has been made, and not successfully

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appealed, that interpretation stands. Case law is, in effect, proving to be a flexible tool.

The noble Lord raises important issues, and I want to offer him the same courtesy that I offered my noble friend on the last amendment. He and his colleagues can meet my officials to talk through his proposals a bit further. He said that this is a probing amendment; perhaps he would like to probe it further with them outside the Committee.

Lord Razzall: I am grateful to the Minister for that offer, and I will discuss with my colleagues how best to take it forward. Having listened to the remarks made by the noble Lord, Lord Wedderburn, and by the Minister, I am not persuaded that now is not the time to attempt to enshrine in legislation, rather than relying on common law, the principles in the 60 pages to which the noble Lord, Lord Wedderburn, referred. My knowledge is not as great as his—indeed no one in this Room has as great a knowledge as he does in this area—but it seems to me that if we are at the stage of having 60 pages of definition of the employment relationship, this is perhaps a moment at which the legislature ought to be intervening to put its view. I am delighted with the Minister’s offer. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 28ZA, to insert a new clause, Gangmasters: further penalties before Clause 18.

The Lord President of the Council (Baroness Ashton of Upholland): It is a great pleasure to be with the Grand Committee. I am here as a result of paragraph 7.52, “Admissibility of amendments”, of the Companion. As the Committee knows, when noble Lords want to put down an amendment a procedure from the Companion is involved. It says that the Clerks, who serve us extremely well, will advise on the admissibility or otherwise of amendments. In this case, the advice from the Clerks was that the amendments proposed by my noble friends Lord Wedderburn and Lady Turner fell outside the scope of the Bill and, therefore, should not be put forward.

Yesterday, I discussed this with my noble friend Lord Wedderburn and I am very grateful for his time. Quite reasonably, under the rules, my noble friends are allowed to ask, none the less, for these amendments to be printed and tabled, which they are before this Committee. However, the Companion goes on to say that it falls to the Leader of the House to come to the Committee and to invite it to follow our practice; that is, where advice has been clearly given that this is inadmissible in the terms of the Bill, the Committee should say that it does not wish to see the amendments taken forward.

I do this in the spirit of saying to my noble friends that I completely understand the importance of the issues that are being raised. I know that my noble friends Lord Bach and Lord Jones of Birmingham

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would be very pleased to discuss the issues and I invite my noble friends to discuss with the noble Baroness the Chief Whip the possibility of further debate and discussion on this. So I take nothing away from the importance of the issues. Having taken a large number of Bills through your Lordships’ House, I have always felt that it is very important to make sure that what we have before us is relevant to the legislation being debated. In this case, the clear advice from the Clerks is that it would not be in these circumstances. I hope my noble friends accept that; but, if not, I must invite the Committee to endorse our Clerks and to endorse what I have just said.

Lord Wedderburn of Charlton: With leave, I shall not move any of the three amendments at issue. I have discussed the matter with my noble friend Lady Turner, as well as with my noble friend the Leader of the House. I am most grateful to her for her time, which turned out to be a waste of her time, for which I am deeply sorry. I was out of London on 20 October when my noble friend Lady Turner offered these amendments and was advised that they were outside the scope of the Bill. She, as we discussed, said that we wanted them to be printed and tabled for various reasons, such as giving notice of very serious issues, as my noble friend the Leader of the House has agreed. She was told by a Clerk on that occasion that even if she insisted they could not be printed or tabled. I learnt of this on returning to London and sent an e-mail to the chief Clerk, who took a slightly different view and accepted that they should be tabled. He took the view that the House must decide because paragraph 7.52 of the Companion states that,

As a matter of principle, we therefore asked for these amendments to be printed. I am most grateful to the Leader of the House for doing what the Companion says that she should do. I shall, of course, follow and not waste any more time, except to say that I am very happy not to move these amendments.

Lord Henley: The noble Lord is absolutely right on this occasion, first, to have insisted on his right to have the amendments printed and, secondly, to have listened to the advice of his noble friend the Leader of the House. He is right in saying that only the House can decide on this matter, but, by tradition—I speak as someone who has been here as long as the noble Lord and almost as long as the noble Baroness, Lady Turner—we take the advice of the Leader of the House on these matters. The noble Baroness the Leader of the House has given that advice and it is therefore our duty to take it.

Baroness Turner of Camden: This arose because my noble friend Lord Wedderburn was away and I discussed the issue with the Clerks. I was advised that it did not fall within the Long Title of the Bill and so on, and therefore was not acceptable. I was concerned about the insistence that the amendment should not be printed. I said that since I was simply the second noble Lord on the list of supporters, I had no

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authority over the amendment and did not want to withdraw it in the absence of my noble friend. However, I e-mailed him and told him what the score was. The Clerk suggested an alternative which, when I received it, was one that I was quite certain my noble friend would not accept. I apologised to the Clerk and said that I could not accept it either.

However, I am grateful for the intervention of the Leader of the House and I am sorry to have taken up so much of her time. Of course I am willing to accept whatever she thinks is the right thing to do.

Lord Razzall: As they would say in the Court of Appeal, I agree entirely with the remarks of the noble Lord, Lord Henley.

[Amendments Nos. 28ZA and 28ZB not moved.]

Clauses 18 and 19 agreed to.

Clause 20 [Commencement]:



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Lord Bach moved Amendment No. 28A:

On Question, amendment agreed to.

[Amendment No. 29 not moved.]

Clause 20, as amended, agreed to.

Clause 21 agreed to.

In the Title:

Lord Bach moved Amendment No. 30:

On Question, amendment agreed to.

[Amendment No. 31 not moved.]

Title, as amended, agreed to.

Bill reported with amendments.


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