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Baroness Miller of Hendon: My Lords, I thank the noble and learned Lord for saying that his explanation was rather dense. I began to think that perhaps I was rather dense. I shall read it very carefully. I shall certainly take his advice. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [The right not to suffer detriment]:

Lord Clinton-Davis moved Amendment No. 45:

Page 16, line 40, after ("will") insert ("or might").

The noble Lord said: My Lords, it may be for the convenience of the House if we also consider Amendments Nos. 46 and 47. The purpose of these amendments is to ensure that there is no loophole in protection against dismissal or detrimental action for workers and employees who would be entitled to the full rate of the national minimum wage or who were about to qualify for a higher rate, even when no rate has

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yet been set in the months following commencement of these clauses. These are technical matters. I beg to move.

On Question, amendment agreed to.

Clause 25 [Right of employee not to be unfairly dismissed: Great Britain]:

Lord Clinton-Davis moved Amendment No. 46:

Page 18, line 27, after ("will") insert ("or might").

On Question, amendment agreed to.

Clause 26 [Right of employee not to be unfairly dismissed: Northern Ireland]:

Lord Clinton-Davis moved Amendment No. 47:

Page 19, line 36, after ("will") insert ("or might").

On Question, amendment agreed to.

Clause 28 [Reversal of burden of proof]:

9.15 p.m.

Baroness Miller of Hendon moved Amendment No. 48:

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: My Lords, in moving Amendment No. 48, I wish to speak also to Amendments Nos. 49 and 50. This little clause, tucked away half-way through the Bill, involves a matter of major constitutional importance. I hope that the noble and learned Lord the Solicitor-General will not get very upset about that and tell me that the House will get upset about it. As I pointed out to him, the Government will be bringing in much more major constitutional issues.

The marginal note to Clause 28 describes it as providing for the,

    "Reversal of burden of proof",

a frank admission that the Government, contrary to the safeguards long since established by our courts and the common law, are requiring the defendant to claim to prove his innocence.

How do the Government seek to justify this? Let me again remind your Lordships of the flamboyant language used by the Minister of State at the Department of Trade and Industry in Committee in the other place. He said:

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

Later he said:

    "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".

I see that the noble and learned Lord the Solicitor-General is nodding his head. I am surprised. I did not think that he would agree with those comments, put in exactly that way. But there we are; we live and learn. I believe that that was a remarkable piece of rhetoric from a warrior in the class war, riding to the rescue of the huddled masses of the oppressed proletariat with which he imagines the country abounds.

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That is why I did not think that the noble and learned Lord the Solicitor-General would agree with the words from the other place.

This piece of nonsense clearly demonstrates the mind-set that afflicts the Government. This clause is nothing less than an attempt by the Government--freely admitted by the Minister in the passages that I have just quoted--not to create a level playing field in what, after all, amounts to a civil piece of litigation about a civil dispute but to make the employer face an uphill struggle. Not that I have ever heard of a downhill struggle. It is an uphill struggle in which the employer is required to do the almost impossible: to prove a negative.

What is the justification for that? Again, let me quote the Minister of State in the other place. At 2.30 in the morning he asked the Committee:

    "Where does this information come from ... Who maintains records about national insurance contributions and pay-as-you-earn issues? ... Who maintains the record of hours worked by the employees?"--[Official Report, Commons, Standing Committee D, 29/1/98; col. 649.]

Hardly pausing for breath--rather like me at this stage of the evening--he triumphantly answered himself, "The employer does". Five out of 10. But the employee knows what he has been paid; the employee knows how many hours he has worked.

More than that, Clause 12 of the Bill empowers the Secretary of State to make regulations requiring the employer to provide the employee with detailed information, including, quoting the words of Clause 12(2)(b):

    "prescribed information for the purpose of assisting the worker to determine whether he has been remunerated at a rate at least equal to the national minimum wage during the period to which the payment of remuneration relates".

Surely the Minister of State should have known that this provision was in the Bill.

The reality is that this Bill will not impinge on the large commercial concerns, which probably are already paying the national minimum wage; or, if they are not, will easily do so by simply putting a penny or two on the price of a loaf of bread, a gallon of petrol or whatever their product is. No, it will most affect the little corner shop. Often that shop is owned by people who arrived in this country penniless, fleeing from more real oppression than the Minister of State in the other place could ever conceive of. It will most affect the corner shop, the petrol station, the local hairdresser's, the flower shop and manufacturing businesses, which are the ones which provide a huge number of jobs; the little shops and small manufacturing businesses which are pestered with the over-zealous enforcement of petty regulations emanating from Brussels, while their continental counterparts disregard them with impunity because their governments do not take them seriously.

Apart from the data supplied by his employer in accordance with the Bill, and which the employee only has to read to get all the information he needs, rights are granted by Clause 10 to see what is in the employer's records as to wages paid, hours worked, and so on. The noble and learned Lord the Solicitor-General gave them to me again at great length. That disposes of the Government's argument that the common law right

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of the owner to have any case against him positively proved and not to have to prove his innocence is due to the fact that the employer is in some sort of dominant position. I believe that, if anything, the reverse is the case. The noble and learned Lord the Solicitor-General is either nodding or shaking. It must be very difficult for him. He is wincing; that is something new.

At the Committee stage I tried to explain the problems of an employer in having to prove a negative: that he had not failed to pay the national minimum wage. How could he do such a thing when, in the case of a small business, there were probably no computer records; when, in common with most employers, wages would be paid in cash; when requiring a receipt each pay day was not a practical probability; and when an employee could reasonably be expected to protest vigorously and immediately if the payslip which the Bill will require to be given to him does not correspond to the cash that he receives in his hand?

What was the Government's response to what the Solicitor-General was kind enough to describe as my "eloquent and effective speech"? I see that the noble and learned Lord remembers that phrase well. Eloquent it undoubtedly was; but effective it clearly was not. The Government absolutely refused to budge one single iota.

What was the Solicitor-General's explanation for that obduracy? He prayed in aid the Industrial Relations Act 1971 which he pointed out had been introduced by a former Conservative administration. He did not mention that that Act, which he now endorses, had been fought tooth and nail by the Labour Party. But perhaps that is what always happens when parties get into government.

It is with considerable trepidation that I stand here about to argue a point of law with one of the two distinguished Law Officers in the Government. The noble and learned Lord, Lord Falconer, is, after all, a QC, when in fact I must confess that I never even finished eating my dinners in Middle Temple--something which I now very much regret.

However, I have to say, with the greatest respect, that his analogy is not a correct one. Under the Industrial Relations Act 1971 and the Acts which succeeded it, culminating with Section 94 of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed. The noble and learned Lord actually mentioned that earlier this evening.

Under Section 92, the employee has the right to receive a written statement of the reasons for his dismissal. The written statement, or indeed reasons given verbally, constitute an allegation of facts which the employer, as the person making the allegation, has to prove. What point will there be in the employee going to the Employment Tribunal and saying "I was dismissed unreasonably. There were no facts which justified it."? Full stop. Where would the case go from there if the employer had previously had to justify and prove his case?

Of course the employer, as instigator of the act of dismissal, and the one contending that it is justified, has the responsibility of proving the facts on which he is relying. That is exactly the same situation as applies under the present Bill. The employee is alleging that

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he did not receive the national minimum wage, whether because of a simple underpayment or an unauthorised deduction. Therefore it is up to him to prove it.

The Minister conjured up a picture of employees,

    "in a moderately vulnerable position. Many of them may be isolated from other workers".

However, they will not be isolated by the time they have called in the assistance of the enforcement officer, and the minder that Clause 10 permits to assist him in the invasion of his employer's premises--perhaps I should not use the word "invasion"; I know the Minister does not like it; I can substitute the word "entry"--pursuant to Clause 10(8)(a) of this Bill.

Then the noble and learned Lord called in aid the touching picture of this wretched downtrodden employee,

    "sometimes not very well able to express themselves in English".--[Official Report, 15/6/98; col. 1428.]

However, many of the small businesses we constantly talk about in connection with this Bill--the corner shops--are owned by people who work hard, long hours, often harder and longer than their employees, who also have English as their second language.

That is the problem with both this whole Bill and the Government's attitude to any suggested amendments, however reasonable. The Government are still motivated by the thinking of old Labour. It is them and us; workers on one side, employers on the other. And the workers are always right.

The workers rights to receive the national minimum wage are fully protected under this Bill. They do not need to be added to by depriving the employer of an elementary historical right to have any case against him proved before he has to answer it. I beg to move.

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