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Lord Falconer of Thoroton: I am grateful to the noble Viscount for raising these two points. I am sympathetic to both principles which underlie the amendments. However, I do not think that they are either necessary or appropriate for the Bill. The purpose of Amendment No. 76 is plain to see, although, as a matter of drafting, it would not achieve its aim. But that does not really matter. I believe that the noble Viscount is trying to introduce the requirement that one must produce records relating to an individual employee during his working hours. Therefore, if the person concerned was the night porter at Champneys, the records would probably have to be produced between something like seven in the evening and seven in the morning.

I can see the sense of that from the point of view of the employee, although, as an employer, the noble Viscount might be a little irritated if a person in his personnel office had to wait until three o'clock in the morning just to give someone like a night porter his records. We hope that employers and employees will reach sensible agreements as to when this should be done. However, if we insert a provision stating that this must happen during the working hours of the employee, that would be overly prescriptive in a situation where co-operation between worker and employer is so important.

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On some occasions it may suit both parties to see the records at a time which is outside the working hours of the individual concerned. We do not believe that that should be prevented by law, which would be the effect of the amendment. Therefore, although we are sympathetic to the idea, we believe it to be over-prescriptive. With that understanding, I ask the noble Viscount to withdraw his amendment.

Amendment No. 87 relates to the power of an enforcement officer in performing his duties to require a person to produce records, an explanation or additional information on "reasonable written notice". So we are now talking about a different clause from that which applies to Amendment No. 76, which relates to the employee's own request where the time is specified. This amendment defines what is to constitute "reasonable written notice" in relation to this power. The amendment says that that would normally be 14 days or, where agreed, up to a month.

There is nothing wrong in principle with defining the amount of notice required. But, again, as with the noble Viscount's other amendment, we think that it is overly prescriptive. Surely the time will vary having regard to the particular request made. This is not as limited as the individual employee's request; this relates to an enforcement officer. "Reasonableness" is a well understood term and we do not need to tie it down to a specific time frame in primary legislation. Indeed, we do not believe that it would be appropriate.

The noble Viscount made a rather effective teasing point about the fact that I had repeatedly said that it would be wrong to refer to "reasonableness" in the context of the legislation. When I say that, I am referring to issues where the Minister is producing regulations. In that case, it is not appropriate for the courts to get into the question of reasonableness. However, where we are dealing with the powers of an enforcement officer to give notice to citizens, then it most surely is appropriate that the word "reasonable" should be inserted, so that the very point can be tested by the courts. I should say that that might have been a teasing point rather than a serious one. Nevertheless, I thought that I would answer it. In the light of what I have said, I very much hope that the noble Viscount will feel able to withdraw his amendment.

Viscount Thurso: Perhaps I may, first, take the noble and learned Lord's last point. It was a little bit of a tease but not wholly so. I am a little worried about the concept that we must not do anything to allow Ministers to be reasonable because they are, so to speak, inherently unreasonable but that somehow or other enforcement officers will always be reasonable. That is quite a dubious and debatable point. However, I do not wish to go into it tonight.

Lord Falconer of Thoroton: It is because Ministers will always be reasonable but enforcement officers may not that one has to add the word "reasonable".

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Viscount Thurso: I shall accept the tease and move on.

As regards the response to my Amendment No. 76, there is an important point of principle here. While I am most grateful to the Minister for his response and have no doubt that we are singing off the same hymn sheet, if a slightly different tune--I am singing in descant probably--the point of principle is that it has been my experience that in British industry generally there is a large number of good employers who have superb human resources departments and for whom the vast majority of this Bill is an irrelevance because they pay way above the minimum wage and they play by the book. I remember a few days ago the noble Baroness, Lady O'Cathain, said in this Chamber that British Airways had a 2 per cent. turnover rate. I have been depressed since I heard that because I thought my turnover rate was rather good but it is considerably higher than that.

There is a certain number of employers--British Airways is certainly one of them--who undoubtedly have great human resources departments and who practise good labour relations. However, I use a phrase that the noble Lord, Lord Currie of Marylebone, used in a debate on management education--despite that head there is a long tail of employers who do not follow the rules and who do not play by the book and who are bad employers. I believe that this legislation is not aimed at my business or British Airways but at those bad businesses who genuinely exploit employees, who pay poor wages, and where poor conditions and bad management conspire to make life pretty intolerable for the people employed. While I have a natural interest, as it were, in protecting employers, in this Chamber my concern is with employees. As regards some of the bad employers, I do not accept that they will necessarily be reasonable. I do not accept that they will not make it difficult for a night porter or a night security guard to exercise his or her rights.

I shall certainly withdraw Amendment No. 76. However, I appreciate what the noble and learned Lord has said and I wish to read what he has said and perhaps discuss it with him. I totally accept that the drafting of the amendment is wrong. I decided that the drafting was wrong before I rose to speak. I believe I have put the words in the wrong place. I accept that. However, the Government may be persuaded that what I seek to do is not such a bad idea after all. Perhaps at a later stage the Government may even produce an amendment of their own. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 to 79 not moved.]

Clause 10 agreed to.

Clause 11 [Failure of employer to allow access to records]:

Baroness Miller of Hendon had given notice of her intention to move Amendment No. 80:


Page 8, leave out lines 35 to 38 and insert ("failed to supply a copy of some or all of the relevant records in accordance with subsection (1) of section 10 above").

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The noble Baroness said: I shall not move this amendment because I believe it is rather closely connected with Clause 10 and a written notice.

[Amendment No. 80 not moved.]

Baroness Miller of Hendon moved Amendment No. 81:


Page 8, line 40, leave out ("shall").

The noble Baroness said: Amendments Nos. 81 to 85 seek to modify the totally unyielding provisions on penalties for breaches of this part of the Bill. It seems to be the philosophy of the Government that there should be no discretion whatsoever available to those responsible for administering the Bill, whether it be the Secretary of State in deciding whether there should be any exceptions to the right to receive the national minimum wage or as regards those who are exercising a judicial function in fixing penalties. Other than in the case of someone convicted of murder, every judge and every magistrate has a discretion about a penalty to be fixed. Even in the case of drunk driving, which carries a fixed automatic penalty of disqualification, there is a right for the magistrate or judge not to impose it if there are what are called special reasons, rare though they may be.

In this case what the Government are asking for is for the tribunal to act as a rubber stamp, with absolutely no discretion to ameliorate the penalties, no matter what the mitigating circumstances might be. I think it would be advisable for the Secretary of State to book a ticket to Strasbourg, where she will undoubtedly soon find herself in front of the European Court of Human Rights if the Bill is passed in its present form.

Our Amendment No. 82 proposes leaving out the word "shall" in line 40 and moving it to line 41, so that the wording will still be:


    "the tribunal shall make a declaration ..."

But then we propose to insert the word "may"--this is Amendment No. 83--at the beginning of the phrase in paragraph (b); in other words, the tribunal may make an award. It enables the tribunal to make the same declaration as the Bill proposes. It merely alters Clause 11(2)(b) to give the tribunal a discretion as to the amount of any penalty that it fixes.

Amendments Nos. 84 and 85, when taken together with Amendments Nos. 81 to 83, would now make the whole clause read:


    "Where an employment tribunal finds a complaint under this section well founded, the tribunal--


    (a) shall make a declaration to that effect; and


    (b) may make an award that the employer pay the worker such sum not exceeding 80 times the hourly amount of the national minimum wage (as in force when the award is made) as it considers just and equitable having regard to the employer's default."

I hope that my putting together into one package all these fragmentary amendments will be of assistance to your Lordships in understanding what I am getting at. It has certainly helped me.

As the Bill stands, an inadvertent failure to produce a single sheet of paper or a few hours' extra delay or a problem caused perhaps by illness will without consideration of any mitigating factors result in an

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automatic draconian fixed penalty. On the lowest forecast of what the national minimum wage may be, this could result in a fine in the region of some £288: enough to put a small shop out of business.

We sometimes read of a person convicted of manslaughter not being imprisoned. Is the crime of not giving a worker his due in an administrative matter so heinous that absolutely no mercy can be shown, no matter what the circumstances might be? Is the Secretary of State frightened that those she appoints to her tribunals might actually apply some common sense in cases where the circumstances require it?

The final amendment, No. 86, is simply consequential upon some amendments which your Lordships might have considered in Clause 10--but I shall not move that amendment either.

9.30 p.m.

Lord Monson: I very much agree with Amendments Nos. 81 to 85 inclusive and I think that the noble Baroness has made out an excellent case, and so there is no point in my repeating the excellent arguments she has already made. Let us suppose that 80 times the minimum wage equates to £280. May I ask the noble and learned Lord, Lord Falconer: can the sum of £280 be set off against gross profits for corporation tax purposes? Secondly, is the £280 taxable in the hands of the employee? Thirdly, is national insurance payable on the £280 by both the employee and the employer? Finally, in the event that the minimum wage for those under 26 or under 21, or whatever the watershed may turn out to be in the end, equates to 90 per cent., let us say, of the minimum wage for older workers, will the sum payable be reduced accordingly?


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