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Baroness Miller of Hendon: I listened carefully to what the Minister said. I do not agree with him but, due to the lateness of the hour, I will most certainly withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 100 to 102 not moved.]

10.15 p.m.

On Question, Whether Clause 27 shall stand part of the Bill?

Baroness Miller of Hendon: Although I gave notice that we were going to oppose Clause 27 standing part of the Bill, due to the lateness of the hour I shall not

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speak to that Motion this evening. However, I would not like the Minister to infer that I am happy with the clause. I most definitely am not.

Lord Clinton-Davis: The noble Baroness is not happy with the Bill.

Baroness Miller of Hendon: The Minister is absolutely right. I am not at all happy with the Bill. I am doing my best to improve it, not only for the benefit of employers but for employees and employment generally.

Clause 27 agreed to.

Clause 28 [Reversal of burden of proof]:

Baroness Miller of Hendon moved Amendment No. 103:


Page 21, line 6, leave out ("qualifies or, as the case may be, qualified") and insert ("does not qualify or did not qualify").

The noble Baroness said: I shall speak to Amendments Nos. 103 to 105. When I spoke on Clause 10 I referred to a major constitutional issue. Another such issue arises from this clause which the marginal note unashamedly describes as the reversal of the burden of proof. In other words, in civil proceedings the plaintiff is not required to prove his case: not to the criminal standard of beyond reasonable doubt, not even just to the civil standard of the reasonable balance of probability. All the complainant has to do is to make an allegation, however fanciful, however far-fetched, misconceived or even malicious. The employer has to prove his innocence.

It is worth noting that nothing in Clause 28 refers to the words "reasonable belief" or "in good faith". The noble and learned Lord, Lord Falconer, has taken issue with me on several occasions over those words but on this particular occasion they do not appear.

No more, innocent until proved guilty. What is the reason for the reversal of the judicial tradition that we are proud to have given to the rest of the world? Interestingly enough, the DTI gave the game away in an outburst of candour in its notes to the Bill. It said:


    "It should ensure that those remunerated at a rate below the national minimum wage can more easily succeed in claims to recover any underpayment".

In other words, away with the concept of equality for all before the law. No level playing field. Perhaps it is more than symbolical that the scales on the figure of Justice outside the doors of this Chamber have not been replaced despite having been removed years ago. One of our attendants told me they were stolen.

What is the explanation for this totally unjustified and biased departure from the normal standards that we expect in our courts? It is because old Labour still lurks behind certain ministerial desks in the DTI, harbouring caricatures of an employer being a cigar-smoking plutocrat with his foot firmly planted on the neck of a grovelling Bob Cratchit. I readily and immediately acquit the noble Lord, Lord Clinton-Davis, of that characterisation. If I am wrong I am sure that the Minister will tell me that his experience as a solicitor, a Member of Parliament and a Minister in a former

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administration as well as in the present one, and as a distinguished public servant in Brussels, means that he undoubtedly knows the realities of the business world.

Neither do I include the noble Lord, Lord Simon of Highbury, in my stricture about lack of perception of the nature of the present relationship of employers/employees, even though he is apparently not participating in our deliberations about minimum wages. As a distinguished industrialist, he, too, undoubtedly is well aware of the balance that exists between both sides of the negotiating table. Nor do I include any of the Ministers sitting opposite me on the Front Bench.

If your Lordships think that I am exaggerating the attitude of unreformed old Labour to employers, let me quote what the Minister of State at the DTI told the Committee in the other place. He stated:


    "For far too long, low paid workers, who have little or no representation, had found it impossible to do anything about their employment status or to gain access to basic minimum rights in the labour market".

Later in the same debate, he went on to say:


    "I am putting the case not only for the Government but for millions of workers who, over the years, have not had the opportunity to make their voices heard".

Millions of workers? Surely, that is a slight exaggeration.

First, the type of employer who is most likely to become embroiled in disputes over the minimum wage is not some giant corporation or even the Government's betes noires, a well known fast food retailer or various so-called security firms providing the services of glorified nightwatchmen in some kind of uniform. No, it would be the owner of the village store; the high street mini-market struggling against discounted petrol and other what they call "loss leaders" but what is probably predatory pricing.

What does the small businessman have ranged against him under this present Bill? Under Clause 14, the employer can call on the assistance of a state funded enforcement officer. He has the power to require the production of records, furnished in the presence of the officer's own witness, including the complainant, with an explanation of the records and other information. And most sinister of all, this officer has the power to enter an employer's premises without a warrant. I beg the indulgence of the noble and learned Lord, Lord Falconer, for repeating what I said earlier, because I still believe it.

If that is not enough, this enforcement officer has the power not only to require the production of records at such time and place as the officer chooses, but also to summon the employer into his presence to be further interrogated. It should be noted that the Bill does not give the employer the right to be supported by his own adviser.

Furthermore, there are the powers of the employee under Clause 10 to require the production of records under a home-made search warrant, euphemistically called a production notice, and for the employee to be entitled to be accompanied by such other person as the employee may think fit; perhaps a solicitor or someone

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from the local citizen's advice bureau or, I was even going to add, someone from Rent-a-Thug with a degree in GBH!

In Committee in the other place, the Minister, in a flood of eloquence which says something for his stamina at 2.30 in morning, posed a series of rhetorical questions. He asked:


    "Where does the information come from? Who maintains the records? Who has information about remuneration and emoluments? Who maintains records about National Insurance and PAYE? Who maintains records about employees?".

In answering himself, he said, "The employer does". Maybe so, but, as I have pointed out, the employee, together with his ally the enforcement officer, has draconian powers to secure access to those records. That is apart from the fact that the information should be in the possession of the employee without all these searches and interrogations and the need for the employee and the enforcement officer to be accompanied by a minder. The basic information which surely every employee will know is how much he is being paid and how many hours he has worked.

Perhaps it is relevant to ask the Minister who the officers will be. Clause 13 gives the Secretary of State the power to appoint them and to second them from other government departments. Will they be trained accountants? Will they be tax inspectors made redundant as a result of all this self-assessment? The point is that they will be paid for at the public's expense. We have not been told how much it will cost, or perhaps we have and I have just missed it in all the reading that I have done. Their function will be to support the employee to construct a case against the employer unless the employer can convince them that there is no case to answer. In other words, their function is to presume that the employer is guilty unless he can positively prove the contrary.

Let us look at a possible scenario for the sake of argument. Let us assume that the minimum wage is fixed at the entirely improbable figure of £1.20 per hour. I did not wish to suggest a figure which would give an idea to the Low Pay Commission as to what is should be. Let us suppose that the employer pays £1.50 per hour but the employee, who is paid in cash, as is sometimes customary in this country, alleges that he has received £1.05 per hour and that the employer's PAYE records are fictitious because the employer has pocketed the difference. Perhaps the Minister will tell me how the employer is to discharge the onus of proof. Is it suggested that in future, every small employer, in addition to all the records he already has to keep--tax, PAYE, National Insurance, VAT, self-assessment, and records under the Companies Act--must also demand a receipt every pay day?

One of the ills which the Government are undoubtedly trying to remedy is that of contrived arrangements which, by some device or other, turn someone who is clearly an employee into a so-called self-employed individual. That can certainly operate to his detriment as regards legal rights, employment protection rights, health and safety and so on. On this side of the Committee, we entirely support anything

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which will remove such abuses. But that does not require the sledgehammer which the Government are now proposing.

The Inland Revenue has a simple test to decide whether or not someone is bona fide self-employed. All the enforcement officer needs to do is to obtain evidence from the person's records at the tax office. The Government's excuse for that reversal of a fundamental constitutional concept and right is that the employer is in a dominant position vis-a-vis the employee. But as I have shown, it is the opposite in this case. With all the power of the state and its enforcement officers, the employee is in the dominant position as regards procuring evidence and information.

My honourable friend, the Member for Ashford, said at the opening of the Committee debate on this clause in the other place that he had thought originally that the Government's reasons for reversing the burden of proof were obscure, but having read the DTI notes, he knew that they were daft. We are not allowed in this Chamber to indulge in such flamboyant language. However, I should like to think that I have discharged the onus of proof in demonstrating that the clause is both unnecessary and unreasonable. I hope that the Committee will support the long-established rule of law by accepting the amendments which restore the burden of proof to where it belongs; that is on the complainant. I beg to move.


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