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Lord McIntosh of Haringey moved Amendment No. 28:


Page 79, line 18, after ("and") insert ("to")

The noble Lord said: My Lords, on Report an amendment was introduced to Schedule 3 to widen the scope for merchant seamen to be balloted on industrial action aboard ship or at a port. The provisions currently state that it will be inconvenient for the merchant seamen to receive a voting paper and to vote while on the ship or at a place where the ship is. This is less than satisfactory grammatically! Receiving a voting paper and actually voting are separate matters. It should therefore be clear that the convenience test applies separately to each of them. By inserting the word "to" before the word "vote", this amendment achieves that result. I beg to move.

On Question, amendment agreed to.

Schedule 4 [Leave for Family Reasons Etc.]:

Lord Simon of Highbury moved Amendment No. 29:


Page 86, line 39, leave out ("unless") and insert ("except where")

The noble Lord said: My Lords, in moving Amendment No. 29, I should like to speak at the same time to Amendments Nos. 30 to 42. These amendments are all minor consequential matters, made necessary by the changes introduced on Report to the provisions of parental leave and time off for dependants and the introduction of new Schedule 8 relating to national security. I beg to move.

On Question, amendment agreed to.

Lord Simon of Highbury moved Amendments Nos. 30 to 42:


Page 87, line 18, leave out ("failure") and insert ("refusal")
Page 87, line 29, leave out ("failing") and insert ("refusing")
Page 88, leave out lines 11 to 16 and insert--
("4. In section 13(2) of the Employment Tribunals Act 1996 (costs and expenses) the following shall cease to have effect--")
Page 88, line 43, leave out ("or time off under section 57A")
Page 89, line 38, leave out ("or time off under section 57A")
Page 90, line 18, leave out ("57C") and insert ("57B")
Page 90, line 19, leave out paragraph 34

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Page 90, line 27, leave out ("57C") and insert ("57B")
Page 90, line 32, leave out ("57C") and insert ("57B")
Page 90, line 37, leave out ("57C") and insert ("57B")
Page 91, line 1, leave out paragraph 40
Page 91, line 24, leave out ("57A, 57C,")
Page 91, line 24, leave out ("81,")

On Question, amendments agreed to.

Schedule 7 [Employment Agencies]:

Lord Simon of Highbury moved Amendment No. 43:


Page 105, line 31, leave out ("The reference in subsection (1)(eb)") and insert ("A reference in subsection (1)(ea) to (ec)")

The noble Lord said: My Lords, this is an amendment to Schedule 7, a technical amendment which amends the Employment Agencies Act 1973. It makes it clear that the application of new Section 5(1A) is not confined to regulations made under new subsection 5(1)(eb). Section 5(1A) makes it clear that regulations under the Act can apply in relation to services provided by bureaux to people seeking work outside the United Kingdom and to non-UK residents seeking work inside the United Kingdom. I beg to move.

On Question, amendment agreed to.

Schedule 8 [National Security]:

Lord Razzall moved Amendment No. 44:


Page 109, line 16, leave out ("all or")

The noble Lord said: My Lords, perhaps with the leave of the House, I may speak to Amendment No. 45 at the same time. I am sorry to have brought this amendment before the House at this late stage rather than on Report although, as I think the noble Minister will accept, this particular amendment to the Bill was brought in by the Government at a relatively late stage. The government amendment comes directly as a result of the report of the Intelligence and Security Committee of 1997-98 which recommended that the procedure should be altered in matters affecting national security so as to give rights to employees which hitherto they have not had. That is the purpose of the Bill.

My two amendments go to the point that if the substance and purport of the amendments being made by the Government are to give to members of the security services in particular the right to appear before the appropriate tribunal and the right to be represented there, it would seem to destroy the purport of the Bill if the words "all or" remain. In fact, it would enable the purpose of the provisions to be completely negated. It would mean that the relevant individual or their representative could be excluded from all the proceedings. As I understood it, one of the major purposes of that section is to allow that representation to take place either individually or by representation.

Of course, it is accepted that in matters of national security it may be appropriate for the individual or the individual's representative to be excluded from significant elements of the proceedings. It cannot be right to have on the face of the Bill the power to exclude either the individual or their representative from all the proceedings, as that was indeed the whole purpose of the clause.

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I suspect--no doubt the Minister will deny this if it is wrong--that the clause is drafted in this way because it has been lifted wholesale from the provisions of the special immigration appeals tribunals. Those provisions are identical with these, with the word "all" included. There is a difference between the procedures for the special immigration appeals tribunals and these tribunals. In the former case, there is a provision for a special advocate, who is an amicus curiae, to be appointed by the tribunal to be present when the applicant and his representative are excluded. Therefore, if we are going to have that wording, it would be inappropriate to take the wording specifically from that provision and to lift it wholesale into this. I am sorry to be raising this matter at such a late stage. The words that are being deleted are very timely and this touches on an important point of principle. I beg to move.

5.30 p.m.

Lord Archer of Sandwell: My Lords, I have not participated in your Lordships' earlier debates on this Bill. Those who know me will know that this does not reflect any absence of interest in the subject matter. It really reflects two points. The first is the number of matters that crowd upon our attention, particularly in the weeks immediately preceding the Summer Recess--at least I hope these are the weeks immediately preceding the Summer Recess! It also reflects the fact that I strongly support the Bill. I was not going to delay your Lordships by saying that I support it. If I have nothing about which to complain I tend to remain silent. But this amendment is different. I am most grateful to the noble Lord, Lord Razzall, for his alertness in setting it down.

As the noble Lord said, in the annual report for 1997-98 the Intelligence and Security Committee, on which I am privileged to serve, addressed the question of personnel problems within the security services. Someone who leaves the service with a sense of grievance has the capability of disclosing information which could be very damaging; or of disclosing misinformation which could be equally damaging.

Over the past few years, the agencies have revised their personnel management policies to bring them into line with best practice. But we concluded that one factor in generating frustration is the absence of a procedure for complaint. We said that everything possible should be done to ensure that employees of the agencies should have the same rights as employees elsewhere, including access to what are now employment tribunals. Of course, as the noble Lord said, from the nature of their employment there will be matters which cannot be public, for security reasons, and the procedures will need to be adapted accordingly.

I accept that the Government are seeking to address that problem. If I may say so on behalf of the committee, although I have no mandate to say it, I am grateful. My noble friend Lord Sainsbury was kind enough to write to me telling me what was proposed.

The present position arises from Section 193 of the Employment Rights Act 1996. That Act permitted Crown employees to complain to employment tribunals. But Section 193 provided that that right could be denied

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them by the certificate of a Minister certifying that their employment was required to be exempted from protection for the purposes of safeguarding national security. So it was therefore open to a Minister in the Government which employed them to deny them access to tribunals.

The amendment moved by my noble friend on Report substituted for Section 193 a new schedule which is now Schedule 8. It does not deny employees of the security and intelligence services access to an employment tribunal. It is a commendable new schedule. But it provides that it is a complete defence to show that the action complained of, which might include dismissal, was taken for the purpose of safeguarding national security. It is not even necessary to show that it had that effect. It is enough that it was taken for that purpose. It need not have been a reasonable course to take for that purpose. If that was the purpose, that is conclusive, as I understand it. So already the employee may have a formidable task in showing that what was done to him was not done for that purpose.

However, it is the procedure which is occasioning the greatest consternation. A Minister may direct the tribunal to do a number of things, such as to sit in private. I find it curious that the tribunal has no discretion in the matter. The decision of the Minister is conclusive. The Minister may be a party to the proceedings. So we may have a party being, in effect, judge in his own cause.

There is a power to make special provision as to the composition of the tribunal. If I understood my noble friend correctly on Report, he said that it was intended that the tribunal shall consist of specially selected experienced chairmen and specially designated lay members. Therefore, it is curious that the Government do not propose to trust them with these decisions.

We then find the provision to which the noble Lord's amendment is directed. One of the matters on which the Minister may direct the tribunal is to exclude the applicant and his representative from all or part of the proceedings. I understand that certain evidence should not be made known to an applicant and his representative; and it may be necessary to exclude them from certain parts of the proceedings. But to exclude them from the whole would prevent them from even stating their case. They could not even argue what conclusions should be drawn from some of the evidence. Certainly it is in danger of being held to infringe Article 6 of the European Convention on Human Rights, and it would reduce the hearing to a travesty. I should be unwilling to take the chair at a tribunal with that provision in its constitution.

On Report, my noble friend indicated that it is the Government's intention that the Attorney-General may provide a special advocate to act in the interests of the applicant in the way that, as the noble Lord, Lord Razzall, indicated, the immigration tribunal now works. But if he is to be denied a representative of his choice, is the special advocate to be appointed irrespective of the applicant's wishes? Let us suppose that he says he does not want the special advocate. Clearly the special advocate is not in any meaningful

15 Jul 1999 : Column 581

sense representing the applicant. Will he have to take instructions from the applicant? Will he have to take into account the wishes of the applicant if he says how he would like a particular aspect of the case dealt with? I am unhappy about the provision on the immigration side.

But if the procedure is manifestly not fair, not only will that reflect on our legal system and our standards of human rights compliance; it will fail to address the problem which the Intelligence and Security Committee had in mind: that of dissatisfied former employees of the security services working out their frustrations in public to the damage of the national interest. It is worth a little care to get the provision right. I support the noble Lord's amendment.


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