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Lord McCarthy: Is the noble Lord therefore saying that the employee should not worry, because although he has got the sack he is still in the pension fund?

Lord Mackay of Ardbrecknish: No, I am not saying that at all. There are two aspects to the argument with which I hope the Committee agrees. One is the aspect of the protection of the employee himself which I have already covered. I suggest that between the Bill and the various employment protection measures, that provision already exists. But there is the other aspect of the protection of the fund. Probably the point I have just made is more with regard to the protection of the fund and the interests of all the scheme members in the fund against someone trying to get rid of a member-nominated trustee who is being difficult.

Under the provisions of Clause 14, if a member-nominated trustee resigns or is removed from the board he must be replaced by another member-nominated trustee. Again, that is for the protection of the fund, the scheme and other scheme members. Additionally, a member-nominated trustee, or, for that matter, any individual who considers the pension scheme is not being run in accordance with the law can bring the matter to the attention of the regulatory authority. The authority will in turn be able to investigate any complaint. When we examined the amendment by the noble Baroness, we took—

Lord Marsh: I apologise for interrupting the Minister, but this is quite a complicated point. He said that the employee concerned would be able to appeal to the regulatory authority. Presumably that would enable the authority to consider whether there had been a breach of the rules of the scheme. However, I should have thought it did not provide direct protection to the employee.

Lord Mackay of Ardbrecknish: I was not trying to argue that point. As I mentioned before, there are two aspects to it. Members of the Committee have understandably been more concerned about the individual employee. I tried to address that aspect. I am now addressing the more general point of the employer removing an employee because of what he wishes to do with the fund and the protections that exist, including the one on which the noble Lord intervened. It is that the

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person involved could blow the whistle to the regulatory authority if the argument was about something which the regulatory authority ought to investigate.

We looked at this amendment not with regard to Section 157 of the 1992 Act, to which the text of the amendment relates, but with regard to Section 152 of the Act, as we believe that that is probably where the noble Baroness, Lady Dean, is looking for the kind of support for an employee that she seeks. This is a difficult issue. I hope that I have managed to explain why we think that this particular amendment is unnecessary. It is not that the protection is not desirable; it is that this way of doing it is unnecessary, because the protection is already there between employment legislation and some of the new provisions in the Bill for the employee. As I outlined, in regard to the fund, the provisions in the Bill would give the fund protection if the employee who was being removed was on to what might be called a good point; namely, one in which the regulatory authority would be more than interested if it were not resolved.

Looking at all the issues that I have mentioned, we believe that existing employment legislation provides sufficient safeguards for employee trustees without the need for further provision in the amendments. As I think I made perfectly clear, I do not want to see employees placed at a disadvantage in this regard. I have listened with some interest to what has been said. Nobody has yet made any comment about my contribution, but on the assumption that I have not totally convinced some Members of the Committee—I see the noble Lord, Lord Monkswell, already rising to his feet—I will of course consider what has been said. As in the previous two examples, I believe that we are at one in what we want to achieve. Noble Lords believe that some amendment to the Bill is required. I believe that we do not need anything other than what is already in the Bill and in employment protection legislation. I look forward to seeing how the argument develops.

5 p.m.

Lord Hailsham of Saint Marylebone: I say first to my noble friend on the Front Bench that I start this controversy by participating in it with an absolutely open mind; that is to say, I am not necessarily wedded to the particular route that has been selected by those who propose this particular amendment via the two consolidation Acts which have been referred to. I do not think that that is the way to begin looking at the problem. On the other hand, I entirely agree with my noble friend on the Front Bench that probably the route (if there is one) that one should follow is by way of the comparatively modern jurisprudence of unfairness principle. Perhaps my noble friend will forgive me for talking in terms of English law, which is the only system that I have ever studied. I refer to unfair dismissal, rather than wrongful dismissal through the courts or discrimination.

What one really wants to guard against is that a person who is a member, as a trustee, of a pension scheme, because he gets the reputation of being what I might call an awkward customer, a loose cannon or something like that, does not have some protection

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against the conditions in which he continues to be employed, or indeed in relation to his chances of promotion. That is the point of the case. The only question is how one addresses it. I would have thought that my noble friend could have gone rather further in the direction of those who support this amendment than he has already done.

The unfair dismissal route—again I am talking in English terms—involves appearance before a tribunal. The tribunal is not an ordinary court of law. It is one of those tribunals that have developed into English (and therefore British) jurisprudence since the war. It acts informally and it is not bound strictly by the rules of evidence or the conventions of the legal system as such. I wonder whether something could be put into the employment protection legislation that would put the burden of proof on the employer who wanted to disadvantage a person who happened to be a trustee of the scheme in the conditions of his employment to show that it was nothing to do with the way in which he had behaved as a trustee.

I feel that those who propose this amendment, irrespective of technicalities (I do not want to indulge in too much technicality) have a point. If a person acting as a trustee has a reputation as an awkward customer—which he is bound to be from time to time, because, as has been said repeatedly during the course of this afternoon's debate, a trustee owes his duty to the fund rather than to either side of the employment contract—there should be something in the tribunal jurisprudence which puts the burden of proof on the employer to justify action against that person who is both a trustee and an employee. I wonder whether my noble friend could perhaps try a little harder than he has done in his very capable and probably persuasive reply if one relies solely on the technicalities.

Lord Mackay of Ardbrecknish: I did not think that I was depending on the technicality. I try not to do that. I simply wanted to point out, so that when noble Lords read my speech in Hansard they would realise how we had decided, in looking at the amendment, which way it had really meant us to go rather than what was on the Marshalled List.

My noble and learned friend strays into territory which is a little beyond me as a simple non-lawyer—as opposed to simple lawyers! I see the point that he makes. Certainly, I would like to consider the reversal (if I understand him) of what would in ordinary courts be considered the quality of proof, the need for the employer to prove that his action in dismissing (or whatever it is) the employee had nothing to do with the employee's action as a trustee. I would have to take some fairly firm advice on whether that was a route that was necessary to strengthen the purposes about which we all agree and which are behind the amendment. That is the best I can do in answer to my noble and learned friend.

Baroness Turner of Camden: I am very grateful to all the Members of the Committee who have participated in this debate and who have supported what we are trying to do in this amendment. Unfortunately, I

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really do not think that the Minister's response goes far enough. It does not address the concerns that have been expressed on all sides of the Committee.

As the noble and learned Lord, Lord Hailsham, rightly said, we are concerned about what happens to the awkward person who is in employment and keeps asking questions and who gets the reputation of being a bit of a stirrer. He is not protected by anything that I can see in this Bill. Certainly the sections of the Bill to which the Minister drew our attention relate to refusal to provide training, for example, which is not the issue at all. The Minister also made reference to existing legislation under which people may apply to the industrial tribunal if they believe that they are being unfairly dismissed. But of course, there is a two-year qualifying period involved; and it could very well apply to trustees—perhaps a trustee in a new scheme that has recently been established in a comparatively new company; if there had been a change as a result of a takeover; or as a result of a merger of companies, or something of that kind. The protection that we seek to provide to such employees would, by making reference to the Employment Protection (Consolidation) Act 1978 and the consolidation Act of 1992, have the desirable effect of putting the onus of proof upon the employer.

As I said at the beginning, in drafting this amendment we looked at the kind of amendment that we had drafted for our Private Member's Bill, when we sought to protect employees working on oil rigs who blew the whistle on unsafe practices. Noble Lords accepted that Private Member's Bill, and it eventually got into legislation. It seemed to us that it was equally important to try to protect the trustee whistle-blower in this situation. I was waiting to hear whether the Minister would say that they do not like the wording but that they will come back with something else.

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