Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Blackwell: My Lords, I cannot add much to the arguments advanced by my noble friend Lady Miller, but when a government bring forward regulations the onus is on them to prove that the regulations are necessary and that they fully understand their implications. From all that has been said, I for one am not convinced that the regulations in this sense are necessary under this Bill.

Lord Simon of Highbury: My Lords, I wish it were as simple as to say that I would meet length with strength.

We had an opportunity in Committee to discuss a broader amendment put down by the noble Baroness, Lady Miller of Hendon, which sought to constrain generally the powers of the Secretary of State to regulate the conduct of employment agencies and business. Amendments Nos. 139 and 140, which she has put down now, cover the same ground, but they speak in particular to the issue of charging fees known as the "temp to perm" in our language.

I do not propose to go over all the ground again and I am sure that your Lordships will be pleased to hear that. Suffice it to say that the draft regulations published by the Department of Trade and Industry in May--to be made under the power which the amendments would qualify--do not seek to cap or limit the size of the fees at all. We are seeking only to ensure that bureaux do not use the fees as a means of deterring employers from taking temporary workers into permanent employment in circumstances where they are not themselves prepared to commit to finding work for the employees.

I would not want the House to take at face value, for example, the rather misleading paid advertising from the group mentioned by the noble Baroness, Lady Miller, which put the case for the agencies, so they thought. It appeared in the form of a news report in Monday's Evening Standard which wrongly claimed that we are seeking to abolish temp-to-perm fees. I make it clear again, for the record, that the Government's proposals will not abolish the fees. The proposals stem from the proposition that it is not right for a price to be put on a temporary worker's head that restricts the range of potential employers he can work for without him getting anything in return. The draft proposals in the consultation document do not cap or limit the size of fees. Bureaux will remain entirely free to protect their legitimate interests by charging temp-to-perm fees, provided that they have committed to provide work for the worker.

We have made it clear that we are open to alternative suggestions to the ones we have put forward in the draft regulations on which we are consulting, provided they meet concerns about the abuse of temp-to-perm fees. We will consider any such proposals carefully, but I am sure that the noble Baroness, Lady Miller, will appreciate that to accept her amendments would pre-empt the result of that consideration, and indeed the

8 Jul 1999 : Column 1130

consultation exercise itself.Were she totally focused on my statement, she would understand why we are not prepared to accept the amendment until we have considered the consultation.

In addition, we have some doubts about the legal effect of the amendment. First, there could be uncertainty about what would be reasonable for charges. Secondly, regulating charges to employment agencies will not in fact cover charges by bureaux acting as employment businesses. Thirdly, no sanction is provided for breach of the provision that would make it unlawful for agencies to refuse to provide services to workers who do not agree with the fees being charged. Those are three technical points. Therefore, we should await the consultation and we should note that the Government are prepared to make the regulations subject to the affirmative resolution procedure. We also do not want to have the provisions on the face of the Bill because they affect a dynamic market place.

Far from spending more time on issues such as whether we are from the planet Zorg, I wish to stay firmly on the ground. Schedule 7, line 35, which is the offensive line in the view of the noble Baroness, Lady Miller, does not state that we wish to cap or affect the fees in limitation terms. If we had, we would have drafted it to read:


    "restricting or regulating the level or amount of fees". The Bill actually says:


    "restricting or regulating the charging of fees".

That is a different issue to which I have already spoken. We will consult and, in the meantime and given what I have said, I would ask the noble Baroness, Lady Miller, to withdraw the amendment.

Baroness Miller of Hendon: My Lords, I have to tell the Minister that I did not see the advertisement in the press earlier in the week, so I do not know what it said. I have recently had a briefing from the group. The briefing that I had before, when I felt strongly about the issue, was from Adecco, and the Minister said that it had also briefed him. Given that it is one of the largest employment agencies in the world, certainly in this country, I thought that its view was necessary.

The Minister thought that I was not listening carefully to what he was saying. In fact, I was listening so well that I heard the slight rebuke in his voice. So that he does not think that I do not understand everything that he has said to me, I will read what he has said very carefully in case I missed some wonderful word of wisdom. I heard many words of wisdom from the Minister and I would not want him to think that I did not. I also heard what the noble Viscount, Lord Thurso, said about introducing a time-scale to the amendment.

I reserve the right to return to the subject, but in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 140 not moved.]

8 Jul 1999 : Column 1131

Lord Sainsbury of Turville moved Amendment No. 141:


After Schedule 7, insert the following new schedule--

("NATIONAL SECURITY

1. The following shall be substituted for section 193 of the Employment Rights Act 1996 (national security)--
"National security.
193. Part IVA and section 47B of this Act do not apply in relation to employment for the purposes of--
(a) the Security Service,
(b) the Secret Intelligence Service, or
(c) the Government Communications Headquarters."
2. Section 4(7) of the Employment Tribunals Act 1996 (composition of tribunal: national security) shall cease to have effect.
3. The following shall be substituted for section 10 of that Act (national security, &c.)--
"National security.
10.--(1) If on a complaint under--
(a) section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment: trade union membership), or
(b) section 111 of the Employment Rights Act 1996 (unfair dismissal),
it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.
(2) Employment tribunal procedure regulations may make provision about the composition of the tribunal (including provision disapplying or modifying section 4) for the purposes of proceedings in relation to which--
(a) a direction is given under subsection (3), or
(b) an order is made under subsection (4).
(3) A direction may be given under this subsection by a Minister of the Crown if--
(a) it relates to particular Crown employment proceedings, and
(b) the Minister considers it expedient in the interests of national security.
(4) An order may be made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.
(5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security--
(a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings;
(b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings;
(c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings;
(d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings;
(e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings.

8 Jul 1999 : Column 1132


(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do anything of a kind which a tribunal can be required to do by direction under subsection (5)(a) to (e).
(7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision--
(a) for the appointment by the Attorney General, or by the Advocate General for Scotland, of a person to represent the interests of the party;
(b) about the publication and registration of reasons for the tribunal's decision.
(8) Proceedings are Crown employment proceedings for the purposes of this section if the employment to which the complaint relates--
(a) is Crown employment, or
(b) is connected with the performance of functions on behalf of the Crown.
(9) The reference in subsection (4) to the President or a Regional Chairman is to a person appointed in accordance with regulations under section 1(1) as--
(a) a Regional Chairman,
(b) President of the Employment Tribunals (England and Wales), or
(c) President of the Employment Tribunals (Scotland).
Confidential information.
10A.--(1) Employment tribunal procedure regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of--
(a) information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment,
(b) information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or
(c) information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, cause substantial injury to any undertaking of his or in which he works.
(2) The reference in subsection (1)(c) to any undertaking of a person or in which he works shall be construed--
(a) in relation to a person in Crown employment, as a reference to the national interest,
(b) in relation to a person who is a relevant member of the House of Lords staff, as a reference to the national interest or (if the case so requires) the interests of the House of Lords, and

8 Jul 1999 : Column 1133


(c) in relation to a person who is a relevant member of the House of Commons staff, as a reference to the national interest or (if the case so requires) the interests of the House of Commons.
Restriction of publicity in cases involving national security.
10B.--(1) This section applies where a tribunal has been directed under section 10(5) or has determined under section 10(6)--
(a) to take steps to conceal the identity of a particular witness, or
(b) to take steps to keep secret all or part of the reasons for its decision.
(2) It is an offence to publish--
(a) anything likely to lead to the identification of the witness, or
(b) the reasons for the tribunal's decision or the part of its reasons which it is directed or has determined to keep secret.
(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) Where a person is charged with an offence under this section it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication in question was of, or included, the matter in question.
(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of--
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) A reference in this section to publication includes a reference to inclusion in a programme included in a programme service, within the meaning of the Broadcasting Act 1990."
4. Section 28(5) of the Employment Tribunals Act 1996 (composition of Appeal Tribunal: national security) shall cease to have effect.
5.--(1) Section 30 of that Act (Appeal Tribunal Procedure rules) shall be amended as follows.
(2) In subsection (2)(d) for "section 10" substitute "section 10A".
(3) After subsection (2) insert--
"(2A) Appeal Tribunal procedure rules may make provision of a kind which may be made by employment tribunal procedure regulations under section 10(2), (5), (6) and (7).
(2B) For the purposes of subsection (2A)--
(a) the reference in section 10(2) to section 4 shall be treated as a reference to section 28, and
(b) the reference in section 10(4) to the President or a Regional Chairman shall be treated as a reference to a judge of the Appeal Tribunal.
(2C) Section 10B shall have effect in relation to a direction to or determination of the Appeal Tribunal as it has effect in relation to a direction to or determination of an employment tribunal."
6. After section 69(2) of the Race Relations Act 1976 (evidence: Minister's certificate as to national security, &c.) there shall be inserted--
"(2A) Subsection (2)(b) shall not have effect for the purposes of proceedings on a complaint under section 54."

8 Jul 1999 : Column 1134


7. Paragraph 4(1)(b) of Schedule 3 to the Disability Discrimination Act 1995 (evidence: Minister's certificate as to national security, &c.) shall cease to have effect.")

The noble Lord said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 145 and 148. I put forward this measure which is designed to allow, even in the most sensitive cases, staff of the security and intelligence agencies to present a complaint under employment legislation, including the Race Relations Act 1976 and the Disability Discrimination Act 1995, in as similar a way as possible to other employees.

Since 1996, there has been no general ban preventing access by staff of those agencies to employment tribunals. However, agency staff and other Crown servants may be excluded from certain rights conferred by employment legislation. The Secretary of State has power, for example, to exclude those in Crown employment on national security grounds from some of the rights given under the Employment Rights Act 1996 and to certify, with conclusive effect, that an act giving rise to a complaint of unfair dismissal was done on grounds of national security, with the effect that such an act is not unlawful. Government policy has been to exercise this power on a case-by-case basis, and only when national security considerations cannot be met by existing safeguards.

These issues have been raised in annual reports by the Intelligence Services Commissioner, Lord Justice Stuart Smith, and the statutory Intelligence and Security Committee. The Government are committed to establishing enhanced procedures for agency staff who feel that they have been unfairly dismissed.

The amendment contained in the new schedule introduces a more liberal regime while safeguarding national security interests. It removes the power of Ministers to remove rights under the Employment Rights Act 1996 from those in Crown employment. However, the rights introduced to the 1996 Act by the Public Interest Disclosure Act 1998, relating to whistleblowing, will continue to be excluded. The power contained in Section 10(5) of the Employment Tribunals Act 1996 allowing a Minister to issue conclusive certificates certifying that an act was done on grounds of national security will be repealed, as will the similar conclusive certificate powers contained in the Race Relations Act 1976 and the Disability Discrimination Act 1995.

Staff of the security and intelligence agencies and others in Crown employment will be able to present a complaint to an employment tribunal in the normal way. However, Ministers may direct that Crown employment proceedings be heard by a specially constituted employment tribunal where national security issues are concerned, and accordingly the amendment says that tribunal regulations may provide for such tribunals. We have in mind that senior chairmen and lay members will sit in these circumstances. As I said, Ministers will have this power of direction only in relation to Crown employment but the tribunal president, or a regional

8 Jul 1999 : Column 1135

chairman will be able to order that a specially constituted tribunal should sit if they consider it expedient on grounds of national security.

The amendment also allows the tribunal regulations to make provision enabling a Minister of the Crown, in Crown employment cases, to direct a tribunal to use special procedures if he considers it expedient on grounds of national security. Tribunals will also be able to use the special procedures of their own motion on national security grounds. Under this provision, Ministers will be able to direct a tribunal to sit in private and to exclude an applicant and his representatives during all or part of particular proceedings, to conceal the identity of witnesses and to take steps to keep secret the reasons for its decision. It will be an offence to publish anything which is likely to identify such a witness or the reasons which are to be kept secret, and new Section 10B of the Employment Tribunals Act 1996 sets out the penalty for such an offence. Where the applicant or his representative are excluded from proceedings, the tribunal regulations will be able to provide that the Attorney-General, or the Advocate-General for Scotland, will be able to appoint a special advocate to act in the interests of the applicant. The regulations will also be able to provide that, where an applicant or his representative have been excluded, the tribunal will not be able to publish to the applicant any part of the written reasons which contains evidence given during the period of the exclusion. However, the applicant will be made aware that part of the reasons has been removed.

Similar provisions to those relating to employment tribunals so far as composition and special procedures are concerned will apply to the Employment Appeal Tribunal. The new paragraph 10A of the Employment Tribunals Act 1996 relating to confidential information is simply a re-enactment of what is currently Section 10(2)(b) and (3) of that Act. New Part 11 to Schedule 8 makes a number of repeals consequent upon the provisions I have just described.

This amendment significantly improves the right of access of employees of the intelligence and security agencies to employment tribunals and is a progressive measure in line with the Government's commitment to open government. I commend it to the House. I beg to move.

9 p.m.

Lord Brooke of Alverthorpe: My Lords, I spoke earlier on Amendment No. 120, which removed from the face of the Bill protection for people employed by the Security Service, the Secret Intelligence Service and GCHQ. Some of us were unhappy about that but we were comforted by the Minister's statement that further provisions would be tabled later. These amendments will provide for protection in front of industrial tribunals which hitherto has not been available, certainly not for the staff of GCHQ and those in the secret services. In general terms I welcome them. This is a move in the right direction, giving rights to people who hitherto have been denied what ordinary employees elsewhere have had. But the rights are heavily circumscribed by the requirements of national security.

8 Jul 1999 : Column 1136

While I welcome this move in the right direction, I am unhappy to be faced at such short notice with these lengthy amendments. I have an uneasy feeling about them. I hope that the Minister can set my unease to rest. Mention is made in the amendment of Crown employment in general. Mention is made of staff of the House of Lords. Mention is made also of staff of the House of Commons. As far as I am aware, under the previous Act such staff were fully entitled to refer to the tribunal. They did not have similar constraints laid on them as I perceive are now being laid down by the provision.

I may be entirely wrong. If I am, I hope that the Minister will put me right. I will then be able to sleep tonight when I go home. I have an uneasy feeling about this extensive amendment. I suspect that it comes in the main from the security services. They have a good record for presenting amendments late. They are invariably long and they are invariably all embracing from their point of view. I am a little uneasy about some of the later references to the way in which corporate bodies can be prosecuted. There is mention of the Broadcasting Act 1990. There is a whole range of issues here. It seems to smack to some extent of closing up on openness rather than freedom of information, which many of us are after.

I may be entirely wrong. It is a long amendment and I do not fully understand it. I give the amendment a general welcome but I hope that my noble friend can set my mind at rest that there is not an extension to other employees. But if I am right, I hope that there will be some reflection on these extensive amendments before we reach the next stage.


Next Section Back to Table of Contents Lords Hansard Home Page