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Baroness Hamwee: I am grateful for that. As a lawyer I can say that, although the term is widely understood by lawyers, the lawyers should change their practice and let people who speak straightforward English continue to do so and not have such explanations. I suspect that the Minister might agree. I am neither a pensions lawyer nor an actuary, so I am not qualified to take the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 210ZD not moved.]

Clause 103 agreed to.

Baroness Hamwee moved Amendment No. 210ZE:



"STAFF TRANSFER MATTERS: TERMS AND CONDITIONS OF EMPLOYMENT
(1) The appropriate person shall exercise his power to give directions under section 102(1) so as to secure that where a local authority is contracting with a person ("the contractor") for the provision of services that are to be provided under a contract instead of by employees of the authority, it does so on terms—
(a) that require the contractor, in the event of there being any transferring employees, to secure the protection of terms and conditions of employment for each of them, and
(b) that, so far as relating to the securing of the protection of terms and conditions of employment for a transferring employee, are enforceable by the employee.
(2) For the purposes of subsection (1)—
(a) "transferring employee" means an employee of the authority whose contract of employment becomes, by virtue of the application of TUPE regulations in relation to what is done for the purposes of carrying out the contract between the authority and the contractor, a contract of employment with someone other than the authority, and
(b) "protection of terms and conditions of employment" is secured for a transferring employee if after that change in his employer he has, as an employee of his new employer, rights to terms and conditions of employment that—
(i) are the same as, or
(ii) are no less favourable than,
those that he had as an employee of the authority.
(3) The appropriate person shall exercise his power to give directions under section 102(1) so as to secure that where—
(a) a local authority has contracted with a person ("the first contractor") for the provision of services,
(b) the application of the TUPE regulations in relation to what was done for the purposes of carrying out the contract between the authority and the first contractor resulted in employees of the authority ("the original employees") becoming employees of someone other than the authority, and

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(c) the authority is contracting with a person ("the subsequent contractor") for the provision of any of the services, the authority contracts with the subsequent contractor on terms satisfying the requirements of subsection (4).
(4) Those requirements are that the terms—
(a) require the subsequent contractor, in the event of there being any transferring original employees, to secure the protection of terms and conditions of employment for each of them, and
(b) so far as relating to the securing of protection of terms and conditions of employment for an original employee, are enforceable by the employee.
(5) For the purposes of subsection (4)—
(a) "transferring original employee" means an original employee—
(i) whose contract of employment becomes, by virtue of the application of the TUPE regulations in relation to what is done for the purposes of carrying out the contract between the authority and the subsequent contractor, a contract of employment with someone other than his existing employer, and
(ii) whose contract of employment on each occasion when an intervening contract was carried out became, by virtue of the application of the TUPE regulations in relation to what was done for the purposes of carrying out the intervening contract, a contract of employment with someone other than his existing employer;
(b) "protection of terms and conditions of employment" is secured for a transferring original employee if after the change in his employer mentioned in paragraph (a)(i) he has, as an employee of his new employer, rights to terms and conditions of employment that—
(i) are the same as, or
(ii) are no less favourable than,
those that he had before that change.
(6) In subsection (5)(a)(ii), "intervening contract" means a contract with the authority for the provision, at times after they are provided under the contract with the first contractor and before they are to be provided under a contract with the subsequent contractor, of the services to be provided under the contract with the subsequent contractor.
(7) Any expression used in this section, and in the TUPE regulations, has in this section the meaning that it has in the TUPE regulations.
(8) In this section—
"local authority" means a local authority for the purposes of section 1(1)(a) of the Local Government Act 1999 (c. 27) (local authorities in England and Wales that are best value authorities);
"the TUPE regulations" means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794), or any regulations replacing those regulations, as from time to time amended."

The noble Baroness said: The explanation of this amendment can be briefer than the proposed clause. The Bill does not provide for the preservation of transferred workers' terms under the same principle as pensions. The matter was raised by UNISON. It states that evidence shows that the TUPE regulations can provide only temporary protection of terms and conditions, which can be eroded, sometimes over quite a short period.

UNISON has given me the example of a local authority that contracted out four of its elderly people's homes to a not-for-profit organisation. The organisation transferred all the ex-council staff on to

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its own terms and conditions a couple of years later. That meant a loss of 60 per cent of gross pay because of a reduction in the hourly rate, reducing it to the minimum wage level. There was a reduction in holiday entitlement, sickness payments and so on.

The proposed new clause would require local authorities to secure in the contractual agreements with contractors that the terms and conditions of transferring employees are "the same as" or "no less favourable than" those they enjoyed as an employee of the authority. The provision would apply for the life of the contract and to subsequent employees who take over the contract. UNISON believes that those measures should be in the Bill rather than left to guidance or directions. I beg to move.

Lord Bassam of Brighton: This amendment was tabled on Report in the House of Commons but was not debated, so this is the first opportunity to explain briefly the Government's position. The new clause attempts to make the same provision for TUPE transferees in relation to terms and conditions that we have already made for pensions.

The specified terms and conditions benefits are that they should be the same as, or no less favourable than, those enjoyed as an employee of the authority. But since the new clause defines "transferring employee" by reference to that employee being a TUPE transferee, it adds nothing, because TUPE already preserves non-pension terms and conditions for transferees.

TUPE does not transfer pension rights, which is why the Government have made particular provision for pensions in the Bill. I hope that that explanation satisfies the noble Baroness. We understand the point about preserving no less favourable terms and conditions for the life of the contract. However, we are not clear how the amendment would achieve that. It seeks only to require that, after the change in his employer, an employees has a right to no less favourable terms. That is already secured by TUPE. Continuing rights to terms and conditions, for example, over the life of the contract that are no less favourable than at transfer would still depend on TUPE and general employment law, in any event. I hope that that covers that the noble Baroness seeks to clarify.

Baroness Hamwee: I do not know whether it answers the point about subsequent contractors after a TUPE transfer. Proposed subsection (4) requires the subsequent contractor to secure the protection of employees' terms and conditions.

Lord Bassam of Brighton: It covers a subsequent transfer.

Baroness Hamwee: That raises the question of how the problems to which I referred arose. Again, I am not sure that I can take the matter further. At any rate, discussing the matter at this stage has made me all the more interested. I shall make some enquiries. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Hanham moved Amendment No. 210A:


    Before Clause 104, insert the following new clause—


"LOCAL ELECTIONS: PILOT SCHEMES
In section 10 of the Representation of the People Act 2000 (c. 2) (pilot schemes for local elections in England and Wales), after subsection (12) there is inserted—
"(13) An order under subsection (1) which contains provision modifying or disapplying any enactment shall be made by statutory instrument and shall not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of both Houses of Parliament.
(14) Any other order under subsection (1) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.""

The noble Baroness said: The amendment would ensure that election pilot schemes—with which we are becoming familiar—are enacted only by an affirmative statutory order. It is our view that changes to the electoral system should be subject to parliamentary scrutiny, particularly as there is public concern about the operation of some of the pilot schemes.

In May's local elections, 60 councils were given approval by the Government to engage in non-traditional ways of voting—the first-past-the-post system. That covered more than 6.5 million voters. There are indications that the Government intend to make even greater use of such pilots in future elections. Despite almost 6.5 million voters being affected by the schemes, there is no parliamentary scrutiny, as, under the Representation of the People Act 2000, the orders are not subject to parliamentary decision.

The Electoral Commission, which reported in 2002 on the schemes and will also do so for those in 2003, has no power to see that its recommendations are implemented. At least parliamentary scrutiny would enable its views to be taken into account.

We well understand, and share, the concern about voter apathy and the need to encourage electors to turn out. But there are concerns about every form of voting other than an actual presence in a polling station, and a controlled postal voting system working in conjunction with that, but as a minor element. All postal votes have demonstrated an ability to increase voter turnout slightly. But the requirement for a countersigned witness declaration for that postal vote has been removed, consequently leaving room for abuse. There is concern about votes lost in the post or misdirected, either not received by the person who is meant to be voting or not received on return.

The Electoral Commission has raised concern about the extension of voting hours and the cost involved. E-voting is potentially open to abuse and gives rise to concerns about security issues, such as PIN numbers being sent by insecure means. The whole question of non-traditional voting methods and their success is still subject to much conjecture. It is important, therefore, that their progress is not only monitored by Parliament but authorised by it—something which has not happened up till now and therefore seems to us to be something which ought to be included in this legislation. I beg to move.

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4.45 p.m.

Baroness Blatch: I support what my noble friend has just said. Frankly, I should have thought that the Government would be sympathetic to my noble friend's amendment. There has been enormous disquiet about the probity and security of such experiments so far. In some areas investigations are still continuing. What is paramount is that the electorate at large should have confidence and trust in any system under which they are expected to elect government, whether local or national. My noble friend has made a powerful point. I hope that her amendment will at least be received with sympathy, if not accepted.


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