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COMMONS AMENDMENTS

14

Schedule 2, page 9, line 23, at end insert--


(" . The Environmental Protection Act 1990 has effect subject to the following amendments.
. In section 8(7) (expenditure to be covered by charging schemes under the section is that of local enforcing authorities in exercising their functions under Part I of the Act), at the end insert "together with the expenditure incurred by the Environment Agency in exercising, in relation to authorisations granted by local enforcing authorities or the prescribed processes to which such authorisations relate, such of its functions as are specified in the scheme."")
15

Page 9, line 23, at end insert--


(" . In section 77(2) (waste disposal licences: transition from Part I of the Control of Pollution Act 1974), at the beginning insert "Subject to section (Time-limited disposal or waste management licences) of the Pollution Prevention and Control Act 1999,".").
16

Page 9, line 25, after ("I") insert ("of the Act").


17

In the Title, line 2, after ("pollution;") insert ("to make provision about certain expired or expiring disposal or waste management licences;").

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17.

Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 17.--(Baroness Farrington of Ribbleton.)

On Question, Motion agreed to.

Employment Relations Bill

7.12 p.m.

The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, I beg to move that the Commons amendment and reason be considered forthwith.

Moved, that the Commons amendment and reason be considered forthwith.--(Lord Simon of Highbury.)

On Question, Motion agreed to.

26 Jul 1999 : Column 1361

MOTIONS TO BE MOVED ON CONSIDERATION OF COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT AND A COMMONS AMENDMENT TO ANOTHER LORDS AMENDMENT
[The page and line refer to HL Bill 48 as first printed for the Lords]
LORDS AMENDMENT

17

Clause 15, page 8, line 20, at end insert--


("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as--
(a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and
(b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract,
and paragraph 4 of Schedule 2 to this Act and sections 146 and 148(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 shall be construed accordingly.")
The Commons disagreed to the above amendment for the following reason--
17A

Because it is inappropriate to restrict regulations under Clause 15 in this way.

Baroness Miller of Hendon rose to move, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose the following amendment in lieu thereof:


17B

Page 8, line 20, at end insert--


("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as--
(a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and
(b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract.")

The noble Baroness said: My Lords, I beg to move.

The amendment I am moving today is very similar to the one passed at the Committee stage in your Lordships' House. I moved that amendment because, although the Government had indicated that they would bring forward their own amendment to achieve the same objectives as mine, they had at that time been unable to do so. Indeed, subsequently the noble Lord, Lord Simon of Highbury, told me, both in a letter and at a meeting,

26 Jul 1999 : Column 1362

that there had been certain problems in drafting an amendment. After discussions with Ministers at the end of last week, a mutually acceptable approach was reached in the form of this amendment. I understand that the Government will accept the amendment both here and in the other place.

Moved, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose Amendment No. 17B in lieu thereof.--(Baroness Miller of Hendon.)

Lord McIntosh of Haringey: My Lords, I am most grateful to the noble Baroness for the way in which she has moved this amendment. I am pleased to confirm that the Government can accept it in its latest form and will do so here and in another place. It was our intention to replace the power in Clause 17 with a substantive provision. Unfortunately, that proved not to be possible in the time available. We had informal consultations with interested parties which revealed complications. In the end we judged it better to give ourselves more time to deal with the issue.

Nevertheless, I should take this last opportunity to restate briefly the Government's position. We made it clear in the Fairness at Work White Paper and subsequently that the existing law allows an employer and worker, if they wish, to conclude a contract on terms which differ from those of a collective agreement which would otherwise apply to the worker. That is the position now and it will continue to be the position once the scheme for statutory trade union recognition is in place.

Of course, collective agreements are increasingly sophisticated and many already provide flexibility in the form of performance related pay and benefits, for example. So employers who have negotiated such agreements may feel no need to negotiate different terms for individual workers. But other employers may wish to do so. They are free to do so and they will continue to be free to do so. The only proviso is that in doing so they must not discriminate in an unlawful way; for example, on grounds of race, sex, disability, trade union membership or non-membership. We believe employees should be protected against dismissal or detriment if they refuse to give up the terms of a collective agreement. For example, it should not be permissible for an employer to say, "Unless you agree to an individual contract and give up the collective agreement, I will see that you are never promoted again". We shall continue to work to draw up regulations to protect workers from such pressures.

We agree with the noble Baroness that the mere fact that one worker has received benefits under an individual contract cannot constitute a detriment for those who do not receive such terms. Of course it will remain unlawful to link the granting or the withholding of benefits to a worker's membership or non-membership of a trade union.

The Government would have preferred to deal with these matters in the regulations. However, I accept that the point was of particular importance to the noble

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Baroness and her colleagues and I am pleased that we have been able to reach a mutually agreeable compromise which will allow the Bill to complete its passage today.

Baroness Miller of Hendon: My Lords, I am grateful to the Minister for clarifying the situation. I ask the House again not to insist on their amendment to which the Commons have disagreed and to agree to Amendment No. 17B.

On Question, Amendment No. 17B agreed to.

LORDS AMENDMENT

323

After Schedule 7, insert the following new schedule--

("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 Employment3 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 Trade4 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.

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(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.
(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 applicant;
(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

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national interest or (if the case so requires) the interests of the House of Lords, and
(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 which is 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) or (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."
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.")

26 Jul 1999 : Column 1366

COMMONS AMENDMENT

323A

At the end of subsection (7) of the new section 10 of the Employment Tribunals Act 1996, insert--


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