§ '.—(1) This section applies to any information obtained by an officer acting for the purposes of this Act, whether by virtue of paragraph (a) or paragraph (b) of section 13(1) above.
§ (2) Information to which this section applies vests in the Secretary of State.
§ (3) Information to which this section applies may be used for any purpose relating to this Act by—
- (a) the Secretary of State; or
- (b) any relevant authority whose officer obtained the information.
§ (4) Information to which this section applies—
- (a) may be supplied by, or with the authorisation of, the Secretary of State to any relevant authority for any purpose relating to this Act; and
- (b) may be used by the recipient for any purpose relating to this Act.
§ (5) Information supplied under subsection (4) above—
- (a) shall not be supplied by the recipient to any other person or body unless it is supplied for the purposes of any civil or criminal proceedings relating to this Act; and
- (b) shall not be supplied in those circumstances without the authorisation of the Secretary of State.
§ (6) This section does not limit the circumstances in which information may be supplied or used apart from this section.
§ (7) In this section "relevant authority" means any government department or other body which is party to arrangements made with the Secretary of State which are in force under section 13(1)(b) above.'—[Mrs. Roche.]
§ Brought up, and read the First time.
§ The Minister for Small Firms, Trade and Industry (Mrs. Barbara Roche)
I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker
With this, it will be convenient to discuss the following: Government new clause 3—Information obtained by agricultural wages officers.
Government amendments Nos. 33, 39 and 34.
§ Mrs. Roche
The purpose of the two new clauses and related amendments is to remove unnecessary obstacles to the exchange of information between different enforcement authorities that might handicap the effective enforcement of the national minimum wage or agricultural 57 minimum rates. That makes sense for effective implementation and to help reduce burdens on business. We do not want authorities operating in the same area to be hamstrung because they cannot talk to each other or pass on relevant information. Nor do we want them to be treading on each other's toes or the toes of the companies within their responsibility.
The information that might be exchanged will be limited. We are not proposing an all-embracing mechanism under which information collected for one purpose will be freely available for others to use for any other purpose. In each of the new provisions, we closely limit the information that may be exchanged, the circle of those who may exchange it and the purpose for which it may be used. They must all be related to enforcement of the national minimum wage or agricultural minimum rates.
There is inevitably some contingency about the provisions. We are still considering the most effective means of enforcement, balancing our wish to secure an approach based on self-enforcement with our determination to ensure that unscrupulous employers—hon. Members on both sides of the House have said frequently that such employers are few—will not be able to evade their responsibilities. We must consider carefully who might best enforce the national minimum wage when we have seen the Low Pay Commission's report. The provisions need to cover the possibility of one or more bodies being responsible for enforcement.
The purpose of the new clauses and related amendments is simple: to ensure that information relating to the national minimum wage or to minimum pay rates in agriculture can be exchanged among the authorities responsible for enforcement.
§ Mr. Ian Bruce
I note the great detail of the information. I am sure that the Minister is privy to the Government's thinking on the data protection legislation. Has she considered whether the proposals may put in jeopardy employers who do not keep the information as securely as they need to under that legislation?
§ Mrs. Roche
I can reassure the hon. Gentleman that the new clauses and amendments relate to enforcement and the inter-relation of different Acts. It will be possible to use such information as a basis for mounting prosecutions, if necessary. If officers of two or more agencies are appointed or commissioned under clause 13, there should not be any unnecessary obstacles in the way of their exchanging information about the national minimum wage.
New clauses 2 and 3 establish the shape of our intentions. The purpose and effect of the related amendments Nos. 33, 39 and 34 should become apparent. New clause 2 deals with the exchange of information between two or more national minimum wage enforcement officers working for different enforcement bodies, regardless of whether either enforcer is responsible for enforcing the national minimum wage in the agriculture sector.
One agency will be able to pass national minimum wage information to the other agency or agencies. As I have said, the nature of the information that may be exchanged, the circle of those who exchange it and the purpose for which it may be used are all limited to matters relating to the enforcement of the national minimum wage.
58 Subsection (1) of new clause 2 establishes that the information in question has been obtained by an officer who has been appointed by the Secretary of State or commissioned by the Secretary of State from another Department or Crown body. It also establishes that the information must have been obtained for purposes related to the national minimum wage.
Subsection (2) specifies that the information is treated as held by the Secretary of State. Subsection (3) allows the information to be used by departmental officers or officers belonging to the Department or body that obtained the information for any purpose relating to the national minimum wage. Subsection (4) allows information to be supplied by any relevant authority to any other relevant authority with the authorisation of the Secretary of State. Again, such information may be used for any purpose relating to the national minimum wage.
Subsection (5) allows information to be supplied outside the immediate circle of national minimum wage enforcement bodies, but only for the purpose of civil or criminal proceedings relating to the Bill. Evidence about a breach of the national minimum wage provisions could be supplied to a worker to help bring criminal or civil proceedings against their employer. Again, any such information supply must be authorised by the Secretary of State.
Subsection (6) makes it clear that the provisions on information exchange for national minimum wage purposes are not intended to prevent the passing on of information that could otherwise be passed on. Subsection (7) defines a "relevant authority" and the closed circle that I have already referred to of national minimum wage enforcement bodies.
New clause 2 enables the different national minimum wage enforcers to exchange information for better enforcement. There was a great deal of discussion about better enforcement, much of which was led by the hon. Member for Daventry (Mr. Boswell), in our very good debates in Committee.
New clause 3 and the related amendments Nos. 33, 39 and 34 deal similarly with agricultural wages inspectors in England and Wales, Scotland and Northern Ireland. They are designed to cover two parallel situations. They each relate most probably to a situation in which information is obtained from an employer whose activities straddle agricultural and non-agricultural operations and whose staff consist of a mixture of agricultural and non-agricultural workers. The hon. Member for Daventry will have had experience of that—personally, as well as in his capacity as an hon. Member. Experience is always useful when discussing such matters.
New clause 3 covers cases such as where agricultural wage inspectors visit an employer who employs agricultural and non-agricultural workers and uncover evidence of non-payment of the national minimum wage to a worker who is not employed in agriculture or who is not entitled to agricultural minimum wage rates. In such a situation, it makes sense for inspectors to be able to pass on the information to the relevant national minimum wage officer.
The second situation is dealt with by amendments Nos. 33, 39 and 34 and is the reverse of the one I have just described. A national minimum wage officer might uncover evidence of non-payment of an agricultural 59 minimum wage rate during inspection of a packhouse, where only a few workers are employed in agriculture. In that situation, it also makes sense for the national minimum wage officer to pass such information to the agricultural wages inspectors.
§ 6 pm
§ Mr. Boswell
Is the Minister saying that, if there is evidence of non-compliance with agricultural wages legislation, notwithstanding compliance with the national minimum wage, the national minimum wage enforcement officer would pass the information to the agricultural wages inspectors?
§ Mrs. Roche
Yes, the hon. Gentleman is absolutely right. We rightly spent a deal of time in Committee going over the connection between the two areas. We have tabled the new clauses and amendments to clarify the matter.
New clause 3 is similar in design and structure to new clause 2. Subsection (1) establishes that the information covered is information obtained by an agricultural wages inspector under agricultural wages legislation. Subsection (2) allows the information to be supplied to the Secretary of State for the purposes of the Bill. Subsection (3) allows the Secretary of State to pass the information to another Department or body.
Subsection (4) allows the recipients of information to pass it on, in limited circumstances and only with the authorisation of the original supplier of the information, to another person or body for the purposes of bringing civil or criminal proceedings under the Bill. For example, if the national minimum wage officer did not want to bring civil or criminal proceedings against a worker's employer, the information could be passed to the worker so that he or she could do so.
Subsection (5) makes it clear that the provisions on information exchange for such purposes do not prevent any passing on of information which would otherwise be lawful. Subsection (6) defines "agricultural wages legislation" and "relevant authority" to cover each of the three agricultural wages regimes in England and Wales, Scotland and Northern Ireland.
Amendments Nos. 33, 39 and 34 each allow information obtained by national minimum wage officers to pass in the opposite direction, so that it could be used for enforcing agricultural minimum rates by the agricultural wages inspectors in England and Wales, Scotland and Northern Ireland—the very point made by the hon. Member for Daventry. However, the amendments exclude information that is not strictly pay related, such as information relating to holiday entitlement and other terms and conditions. The nature of the information that may be exchanged, the purpose to which it may be put and the circle of those who may exchange it are limited along lines similar to those described in new clauses 2 and 3.
I am convinced that the proposed changes will improve the operation of the Act, both for those responsible for enforcement and for workers and employers. I am also convinced that we have built in necessary limitations so that information can be used only for the purpose of enforcing the national minimum wage or agricultural 60 minimum rates. I have taken a little time to go into some of the detail, for which I hope the House will forgive me. I have done so because it is important to explain to the House exactly what we mean to do. The proposals form a very important part of the Bill. I believe that this is the right approach, and I commend the new clauses and amendments to the House.
§ Mr. Boswell
I genuinely thank the Under-Secretary for her explanation. These are not simple matters; they do not leap off the page. Such a clear definition is valuable to the House and to those who read our deliberations. In the spirit of her ingratiating—though not intentionally so—remarks, I should say at the outset that I would not seek to oppose what she is doing.
In a sense, the provisions have come to light because the Government have not yet decided on the enforcement structure they will apply to the national minimum wage under clause 13. We know only that there is an agricultural inspectorate and that there will be wages officers in other capacities who will be able to enforce the legislation; we do not have a precise blueprint. Perhaps one ought not to quibble about that. It is much better that the Bill should be made practical and sensible and that it should work in the most economical way possible. That is no issue between the two sides of the House.
It occurs to me that new clause 2(7) refers to the "relevant authority" beingany government department or other body which is party to arrangements made with the Secretary of State which are enforced under section 13(1)(b) above.It will be important later for Ministers to consider the extent to which, for enforcement purposes, those arrangements can be made public. If, for example, somebody turns up at my farm—an interest that I have declared in the context of these debates—or at some other business with which I may be involved, and claims to be an officer for that purpose, it is very important that that is keyed in. It would also be helpful if that was clearly explained in advance to relevant interests.
There is a tension in all this. Information—knowledge—is power. It is important and sensitive, and may sometimes be confidential. It is very important that it does not get into the wrong hands. Conversely, it is important that it should be available for the right purposes. That is a balance that all Ministers have to strike. I do not twit the Government for not proposing such extensive and meaty provisions in Committee. The new clauses and the amendments look slightly like afterthoughts. Perhaps they are good afterthoughts. That is what we now need to discover.
We need to consider two areas: one general and one specific. The first concerns the acquisition and control of information by the Secretary of State. New clause 2(2) is a rather deathless, or curt, sentence:Information to which this section applies vests in the Secretary of State.I was irresistibly drawn to the comparison with the coroner, who owns the body. The important aspect is what the Secretary of State is to do with the information and where it should be relevant. The Under-Secretary eloquently explained that the intention is that the Secretary of State should make information relevant to the Act available only for the purposes of enforcing the Act. I note that she is nodding.
61 The construction of new clause 2(3), which states:Information to which this section applies may be used for any purpose relating to this Act by—(a) the Secretary of State",is not quite as narrow as the Under-Secretary intended it to be. The Secretary of State might want to make a speech, for example, in which she describes how good the Act is or how triumphant the national minimum wage has proved to be in practice, despite the concerns expressed by Opposition Members. I am not sure how she might do that or whether it would be proper to use internal enforcement information for the purpose. Conversely—I am weighing the dilemma myself—the Opposition find any information bestowed on us by the present Secretary of State or her colleagues a bonus.
From time to time, my right hon. Friend the Member for Wokingham (Mr. Redwood) asks a series of parliamentary questions; he does not always receive an answer. He is distressed and concerned about that, because it reduces his ability to probe and, if necessary, harry the Government.
I never receive a priority written answer on time from the Department of Trade and Industry; it always slips by at least a day. Lest the Minister think that I am singling her out, I should say that on 27 October a Minister in another Government Department promised in a written answer that she would write to me to answer my question on, I suspect, a somewhat sensitive matter. I have a fairly rudimentary bring-up system and I have just noticed that I have not yet received an answer, so I must return to that one.
A balance must be achieved. I think we all know that, although the Secretary of State wants to use the information for the best purposes, to some extent it will have a public face. Sometimes it would be proper to draw on that information in a policy speech. We welcome openness where we can persuade the Department to carry out such a policy. We might even have to welcome openness if, subsequently, the Department is forced to admit that the whole enterprise of the national minimum wage is a signal failure—and we should like the Secretary of State to come clean about that, too.
There is also what might be called the micro-dilemma. What happens to locally amassed information relating to individual employers or enterprises, which is then sent, nominally to the Secretary of State but in fact to her officials, and used for enforcement purposes?
The Under-Secretary rightly says that it is necessary— sensible— for information to be exchanged between public authorities for enforcement. I do not quibble with that—it is entirely proper—but the counterpart of making the information more readily available than it probably would have been if new clauses 2 and 3 had not been tabled is that there is more of it about. There is more of it to leak to the wrong people or, conceivably—although I sure the Under-Secretary would not want her officials to do so; perish the thought—to be abusively released in a way that would breach confidence or create embarrassment for individuals, improperly.
I am not drawing the Government's attention to that potential set of circumstances. I suspect that, if I did, the Under-Secretary would tell me that there are legal defences and that the Department of Trade and Industry would have to resist a legal challenge if there were some malicious disclosure by officials. I understand that, but 62 that is not the case that I have in mind. There are two points on which I seek assurance about the interests of the citizen or the employer on whom a report might be made which may be referred from one set of enforcement officers to another.
What would happen if, under new clause 2(5), the information was disclosed with the authorisation of the Secretary of State and supplied for the purposes of any civil or criminal proceedings relating to the Act—it is sent back to the employee to enable them to consider whether to bring proceedings in an employment tribunal or civil procedure—but the employee abused the information?
The Under-Secretary may remember some exchanges that we had at a late hour—or was it an early hour?—about the possibility of a similar thing happening when a worker took a third party to look at the employer's employment records. It is in my mind that, as a result of malice or even inadvertence, the worker, or the party to whom the Secretary of State might disclose the information, could make it available to another person.
If the information has to be used in civil or criminal proceedings, that would come out in open court, but if the case did not come to court and the information was leaked to a third party and was damaging to the interests of the employer who had originally generated the information, would that be the responsibility of the Secretary of State, through her officers, or would it be the responsibility of the person to whom the information was made available for the purposes of civil or criminal proceedings?
§ Mr. Bercow
My hon. Friend is dealing with this point in an exemplary fashion. What worries me, however, is the possibility that the information might be leaked, without the authorisation of the Secretary of State, to a business rival. In such circumstances, would any redress be available to the employer who had been offended and discriminated against in that unseemly way?
§ Mr. Boswell
That is a perfectly fair point, additional to the ones that I am making. Not only is information about employment practices probably confidential among the parties concerned, it is of considerable interest to an employer to help the latter understand what is going on.
In this context, there is another, separate, issue. If information that is relevant and exists simply for the purposes of the Act is disclosed to a third party, what is the legal position if additional information is accidentally embodied with it? I remember some rather similar discussions taking place during the passage of the Bank of England Bill.
Sadly, there is always the possibility that papers will be accidentally stapled on. The other day, by mistake, I sent a letter to a third party—and not to the person for whom it was intended. The third party was civil enough to return it, but what would have happened if they had used it? It might have been—although in this case it would not have been—embarrassing. It is important to pin the responsibility in such circumstances. I do not seek to sling it round the neck of the Secretary of State.
If information is disclosed to a third party under this procedure for the purposes of civil or criminal proceedings—and therefore, in a sense, for finer purposes and in confidence, under a sanitised procedure—what 63 happens if it is published? Is there any liability on the publisher of that information for what has happened if it gives rise to commercial damage to the individual?
These are genuine points about what might loosely be called civil liberties and the interests of employers that should be considered as part of the powers that the Secretary of State and her Ministers seek to take to extend the powers of information. For the reasons that I gave at the start of my remarks, I shall not cavil at the Minister's method—on balance, it is probably the right thing for her to do—but it is important in all these matters that confidential information is not leaked, that it is not made available in a way that may be abused by a competitor, and that if anyone allows that to happen, either by accident or maliciously, there is some means of redress for the individual whose interests have been damaged.
§ Mr. Ian Bruce
I am not quite as relaxed as my hon. Friend the Member for Daventry (Mr. Boswell) about the purpose and detailed wording of new clauses 2 and 3. I am deeply troubled that, in about half an hour or so, we shall deliberate on some extremely important new clauses that have just been introduced to the House. They were not considered in detail in Committee. Lawyers outside this place have had far too little time in which to anticipate their likely effect. I am disturbed that the civil liberties lobby—if we may so describe people who work on civil liberties—has probably not addressed itself to what the new clauses do.
You, Mr. Deputy Speaker, will know that the Government, in proposing a National Minimum Wage Bill, have regularly demonstrated that they want to ensure that employers—not the taxpayer—pay their employees. The Government want to ensure that people receive an adequate wage, so that it need not be topped up using housing benefit or income support. That is why the wording of these clauses is so important.
I wonder why the wordscivil or criminal proceedings relating to this Acthave been used instead of civil or criminal proceedings "taken under" this Act. The wording is extremely important, because of the way in which the Bill could be used.
For example, a constituent who is trying to claim from his or her absent partner through the Child Support Agency, and who probably has good reason for doing so, might come to an hon. Member's surgery. The present wording gives that individual the right to demand that the agency asks for information about someone who claims to be earning a small amount of money, but surely must be getting the minimum wage, so that he or she can take action relating to the Bill to ensure that the person pays his or her full dues under the Child Support Act 1995.
What about an agency looking into housing benefit? Surely the same argument would apply. The Government have said that one of the purposes of this Bill is to reduce the amount of housing benefit that must be paid by the taxpayer. The Government want the individual to be paid a certain amount of money. Under this ill-debated and ill-considered clause, which has only just been sprung on the general public, a housing benefit office could look into a claim from an individual stating that he or she is paid £2 an hour because it seemed incorrect—the purpose of 64 the Bill is to ensure that people are paid the right amount of money—and ask for information. I hope that the Minister will reassure us that that could not happen.
§ Mr. Boswell
Has my hon. Friend thought of the recent case involving Marks and Spencer, which secured large damages because of the commercial damage done to it by allegations about a defective employment practice? The company was vindicated in court, but needed compensation for damage that had been done because the information had been made public.
§ Mr. Bruce
I recall that case; the damages were substantial. Marks and Spencer took action against the broadcasting company that had made and published the programme. I suspect that a company would not have the same right to damages against the Government—they always seem to be able to protect themselves.
That moves me swiftly on to another important point about the authorisation of the Secretary of State. When most people read those words, they will think that, when such information needs to be transferred from one agency to another, the Secretary of State and President of the Board of Trade will get the full file in her red box, telling her the circumstances and why the information has to be passed across, so that she can take a semi-judicial decision that it is a proper movement of that information. We know what the general public do not—that that terminology is meaningless. All it means is that it will be authorised by someone who authorised someone else who authorised someone and so forth all the way down the feeding chain until some junior civil servant can say, "I am authorised by the Secretary of State to ask for this information." It will go to another junior civil servant and the information will pass across.
I am reminded of an interesting story that I heard from the late Nick Ridley on this subject. He told the House—certainly the meeting that I was attending—that he had awoken one morning to find an important letter from the Department of the Environment among the post on his breakfast table. The letter said, "I am authorised by the Secretary of State for the Environment to inform you that your carriage gate has been listed." He was the Secretary of State for the Environment and he had no inkling that he was about to list his own arch.
Frankly, the fine words on this amendment paper are a con. They are an attempt to tell the public that it is all right and that information will be transferred only in the most extreme of circumstances because the Secretary of State herself—the President of the Board of Trade—has to authorise the transfer.
§ Mr. Bercow
My hon. Friend just provided the House with an illuminating example. May I draw his attention to another probably occasional but sinister circumstance that could arise? He referred to the exercise of discretion on the part of the President of the Board of Trade. Could the people who might leak information from time to time be not junior civil servants but senior spin doctors, briefing on their own account and without authority in such a way as to damage others? In those circumstances, would the Secretary of State take responsibility in the classic and, if I may say so, the Powellite sense of the term?
§ Mr. Bruce
We all doubt whether the Secretary of State would take responsibility. The Minister is an honourable 65 lady and one of the stars of the Administration—I hope that I do not damage her career by saying so—and she will take that matter on board. We are trying to put across an important point. Who exactly will authorise the transfer of the information? I suspect that it will be the most junior of junior clerks who will be authorised by the Secretary of State to transfer information whenever it must be got from one part of the Government organisation to another.
§ Mr. Boswell
It would be helpful if, through my hon. Friend, I might ask the Minister what grade of official would be required to authorise the transfer of information.
§ Mr. Bruce
I would certainly give way to the hon. Lady if she wished to intervene, as that would facilitate matters. It is clear that I shall have to go a little further to tempt her to decide that this matter is important enough for her to give us a proper answer.
The Data Protection Acts 1984 and 1988 and other legislation designed to protect people have often been used almost perversely to prevent people who need information, often for personal use, from misusing the powers available to them—it is the sort of thing that often happens within Departments. In a half-hour debate on a wet Monday—I am not sure whether it is wet; it is probably sunny outside—when the House is nearly empty, we are giving powers to the Secretary of State and the feeding chain all the way through the Department of Trade and Industry, and to the Department for Education and Employment, to allow officials simply to show a card saying, "I am authorised by the Secretary of State to get information you are holding in another agency and pass it across."
Often, it is convenient for Governments to trawl for information in other areas. That has been the case for a long time. Most of the Labour Members present when the Child Support Bill was debated were keen to tell us how the Child Support Agency would have the power to pull in information. That is important, and we should consider it.
I intervened on the Minister on the subject of data protection legislation. I know that she is knowledgeable in such matters. I think that she will be responsible, particularly on the information technology side, for looking into all the problems. She will know that the Data Protection Bill that is passing through the House has been driven by a new European directive.
I was not a member of the Standing Committee that considered this Bill. I come to it on a wet Monday. When I looked at it I thought, "Oh no! Surely not. Surely the Minister must know that German data protection legislation would not allow such a transfer of information—absolutely not." We are considering jurisdictional matters. After all, people working in the United Kingdom and paid by companies in Germany might be caught by the Bill, but that information could not be transferred.
The Minister may think that she will enjoy many powers under the Bill, but I suspect that, when the Data Protection Bill is enacted, she will find that other colleagues, possibly even officials working for the same Department, are working to prevent information being transferred between Departments. It is important that we find out what considerations there have been on how the Data Protection Bill will affect information.
66 The German system is simple. Any information that is given to someone for a specific purpose must not be given to anyone else for any other purpose, although that is a daft interpretation of the European Union directive. I suspect that, as soon as we think we can live with the new data protection legislation and make it workable, someone will—as has happened time and again—take the matter to the European Court and say, "Hang on a minute. I provided some information about what I was doing in my workplace." That person will claim certain rights under the European convention on everybody's rights, which the Government are incorporating into British law, and say that the information that he provided was transferred from one Department to another without his authorisation.
If information that has been given in good faith by an employer is transferred between agencies, it may be found that, under the new Data Protection Bill, the employee's rights have been trampled on.
§ Mr. Lansley
My hon. Friend is talking about the transfer of data between agencies and Departments, but a Government agency may acquire information for two different reasons and be required to keep the data separate. If the officers referred to in the Bill were acting for the Contributions Agency, for example, but were also required to deal with the national minimum wage, they would have two sets of data for two separate purposes. How will the Data Protection Bill affect how they use that information?
§ Mr. Bruce
Interestingly, people in business are absolutely barred under data protection legislation from transferring information—they could get into a lot of trouble. The Government say, "We're not a business and we are not out for profit. We are guardians of the public interest." They think, therefore, that they can trample on everyone's civil rights in all their other legislation.
On a wet Monday when there is hardly anyone in the House, the Government have introduced pages and pages of new clauses on how they will do away with people's rights. Information will be given to one Department for a particular purpose, but the Government will not prevent its being used for another purpose.
Many people say that, if people volunteer and receive a little money, they will not be charged under the Bill, so long as no one is taken to court and no information is passed on, as there has to be a complaint from the worker first. That is not so. The information will be gathered, and such working arrangements will become criminal. Workers will no longer be allowed to negotiate the pay they want—they will not be allowed to volunteer and receive a small amount of money. The Bill will make it illegal for employers to give a volunteer a little money out of the kindness of their hearts, even though the volunteer did not need it. It will force people to work for nothing if they have volunteered—unless they work for a minimum wage.
If the Government had introduced the two-clause Bill that we expected—a Bill that established a minimum wage at half male median earnings, to be increased over time to two-thirds median earnings through regulations—we could have understood where they were coming from, as that was their commitment. However, they have 67 introduced a Bill which, not including all the new clauses, stretches to some 40 pages. We ask what the minimum wage will be, but it is not in the Bill—we cannot find it. We have all this complicated stuff—
§ Mr. Deputy Speaker (Mr. Michael Lord)
Order. This is not a Second Reading debate. The hon. Gentleman must speak to the new clause.
§ Mr. Lansley
Does my hon. Friend recognise that industry wants the compliance costs to be minimal? In some ways, industry might find it helpful if a body such as the Contributions Agency deals with the minimum wage as well as national insurance contributions. That is not possible at the moment, because the Government have not made up their mind which body should carry out those duties.
§ Mr. Bruce
That is an important point. Employers would welcome a single agency that dealt with everything—minimum wage, national insurance contributions, tax or whatever—and had one set of records. In fact, people could be prosecuted if information about them contained a mistake—the wrong figure in the wrong place—as all the agencies will be passing information between themselves. The costs of checking will be considerable.
If the Labour party really believed in its proposals, it would have introduced a two-clause Bill. Instead, the Government have sprung on the House, at this late hour, an enormous muddle with no real discussion. I know that even the Conservative Whips want me to sit down and say almost nothing, but I am trying to help the House to make progress. The Government want to implement their minimum wage proposals—perhaps, if we stay up a little longer, they will tell us what the minimum wage will be, so that we can say, "That is great. We can all go home now."
§ Mr. Bercow
I fear that my hon. Friend's last point is a triumph of optimism over experience, which leads me to ask where he saw those flying pigs.
§ Mr. Bruce
The hon. Gentleman makes his point far better than I could. I am an eternal optimist—that is why I am speaking to the new clause. I have the greatest respect and even fondness for the Minister, so I hope that she will make some real, positive efforts. I had to compliment her on bringing forward clear policies on information technology, but the ones that we are discussing now are not clear. They have been bounced on her by her officials—who are looking very amused—as they, not the Secretary of State, will be authorised to grab all the information; if their wives or husbands have disappeared, they will have access to all that information 68 to find out where they are. The civil liberties lobby should examine the matter and the Government should put it out to proper consultation. We should reject the new clause.
§ Mr. Hammond
Many of the points that I wanted to make have already been raised by my hon. Friends, so we shall be able to proceed a little more speedily. However, there are still some outstanding matters that I want to raise.
One of the concerns that we expressed in Committee on record keeping and the passage of information related to the lack of symmetry between the requirement on an employer to maintain records that would be necessary to bring a prosecution under the Bill—and the penalties that he would suffer if he failed in that duty—and the lack of any requirement on a worker to keep relevant records.
It might at first glance seem that it is clearly the employer's responsibility to keep records, and in the case of most conventional employment, with the employee clocking on and off at the factory door, that is indeed so; but we agreed in Committee at an early stage that the problem areas that were likely to exercise officers appointed under the legislation concerned not such simple cases of traditional employment but, for example, piece work done by home workers.
Records kept by the home worker himself or herself will be essential to determine whether the minimum wage has been properly paid. The employer will have no way of knowing how many hours the home worker has put in. Following our discussions in Committee, I had hoped that the Government would introduce some changes to create a symmetry of obligation between employers and workers.
I am genuinely confused about another issue. Subsection (2) of the new clause says:Information to which this section applies vests in the Secretary of State.I think that I understand what that means, but in almost all cases, the information in question will be held by an employer and transferred in its entirety to the Secretary of State. I imagine that the Secretary of State will have an exact copy of the employer's wages records, for example.
It is not clear from the wording of the new clause whether it is intended that the Secretary of State should have some ownership in the information that has passed via her officer to the Department of Trade and Industry, as distinct from the employer's original ownership in the information that he collated and maintained in his database. Can ownership of a record vest in two people; or must it, by vesting in the Secretary of State, have ceased to vest in the employer?
I repeat a plaintive cry that was often heard in Committee: I am not a lawyer. My understanding of these matters is only that of an informed—I hope—layman. The Minister is a lawyer, and will have a much clearer understanding of this rather technical issue.
§ Mr. Bercow
The question of ownership is crucial. If my hon. Friend is right, and the President of the Board of Trade becomes the exclusive owner of the information, what is there to prevent a future Parliament from amending the legislation to enable that information to be released to other bodies or persons for purposes unrelated to the enforcement of the national minimum wage?
§ Mr. Hammond
The possibilities are endless if the intention is that the Secretary of State should become 69 the owner of the information. I accept that it would normally be unexceptionable for the Secretary of State to be the owner of information that his or her officers have gathered, but in this case, as I think the Minister would agree, the information is almost certainly a direct copy from the employer's records.
Who will own the information? Is there a distinction between owning the information passed to the DTI and owning the original information? What are the implications of the information vesting in the Secretary of State in terms of authorisation of its release? For example, would the original employer retain any rights to authorise the use of the data or their release to other parties? There may be a simple explanation, and if so, I look forward to hearing it.
I, too, have reservations about the possible implications under data protection legislation, but I think that my hon. Friend the Member for South Dorset (Mr. Bruce) has covered that point adequately. I hope that the Minister will be able to reassure us both.
Can the Minister confirm that subsection (6) of the new clause would prevent the Secretary of State not only from transferring the information elsewhere, for purposes unconnected with the minimum wage, but from using it for such purposes within the Department? If she can, that would at least be reassuring as a statement of intent; but, in view of the Government's lamentable record in maintaining the English walls around their information, I am not entirely sure that the Chinese wall that we are invited to imagine being constructed within the DTI would give us as much reassurance as we would really like.
§ Judy Mallaber (Amber Valley)
I hesitate to prolong the debate. The contribution of the hon. Member for Runnymede and Weybridge (Mr. Hammond) was slightly more to the point, but that of the hon. Member for South Dorset (Mr. Bruce) was nit-picking in the extreme. We are clearly being invited to stay here all night, and Government Members are entirely happy to do that.
Anyone would think that such a situation had never arisen before, but plenty of legislation has been enacted in which there has been a crossover of information. An example of such legislation received Royal Assent just months before the Conservative party went into opposition: the Social Security Administration (Fraud) Act 1997. Under that Act, there was a crossover of information between the Inland Revenue and Customs and Excise for the purpose of checking the accuracy of information relating to benefits contributions or national insurance numbers.
§ Mr. Bruce
I am grateful to the hon. Lady, but I think that she has been taken in by the Labour party's 70 propaganda. We are not an arrogant party. We know the problems that such transfers have caused in the past. We have never before managed to get the introduction of such new powers right with only 10 minutes' discussion.
§ Judy Mallaber
I am not sure whether there is anything for me to reply to in that intervention.
When we were discussing in Committee the need for a single minimum rate, I spoke of the need for simplicity and clarity, to prevent us from having a plethora of enforcement procedures, with masses of inspectors and cumbersome policing mechanisms; but we also need effective implementation, which will be impossible if information is coming in from different sources.
It is not surprising that we have not yet laid out fully who will be responsible for enforcement, because that will need to be done by different agencies for different purposes. We need to be able to bring the information together.
§ Judy Mallaber
No, I will not give way again, as I want to make some progress.
In police series, it may make for wonderful television to have different parts of the force hiding information from one another, with secrecies and jealousies, but that does not work very well in real life. Different agencies will collect the information we need, and to have sensible enforcement, we must be able to pull it together. That is what we are determined to achieve.
New clause 2 is essential so that information can be passed from one agency to another. That is sensible and necessary if the legislation is to work properly. In Committee, Conservative Members made it clear that they disliked intensely the principle behind the Bill. They said that they could never agree about the morality of legislation to overcome the immorality of poverty pay.
§ Judy Mallaber
I wish to move on. I took many interventions in Committee, and I did not have anything to reply to after the intervention by the hon. Member for South Dorset.
We all know that Conservative Members are not happy with the principle of the Bill, because they do not want to get rid of poverty wages and they do not believe in our economic arguments. They did, at least, assure us in Committee that they sought to make the Bill work properly. New clause 2 is an essential part of the enforcement mechanism of the Bill, and we should agree it.
§ Mr. Lansley
I was prompted to contribute to the debate by a comment made by my hon. Friend the Member for South Dorset (Mr. Bruce), but having listened to the hon. Member for Amber Valley (Judy Mallaber), I must take up one or two issues. She asserted with great confidence that new clause 2 is an essential aspect of the enforcement mechanism of the Bill. It is surprising, therefore, with her membership of the Standing Committee and her knowledge of the Bill, that she did not table a suitable amendment in Committee. She did not say that something was missing from the Bill. She did not 71 say that she knew from her study of the social security administration legislation introduced before the election that a mechanism was needed to control the flow of information between Government Departments. She did not say that, because Ministers did not tell her to say that. Ministers seem to have recently discovered the need for such a mechanism, but I wonder how essential it is.
When the Minister replies, she should tell us which legislation would apply to the acquisition and control of information by Government Departments in pursuance of the provisions of the Bill if new clause 2 were not agreed. I suspect that some perfectly good legislation might apply to the Bill. My hon. Friend the Member for South Dorset made an interesting reference to that point. [HON. MEMBERS: "Where is he?"] He will be back with us and he will read the report of the debate. Legislation exists to govern the control of information by Government Departments.
§ Mr. Boswell
Does my hon. Friend agree that it would be possible in principle to designate, for example, an agricultural wages inspector as an officer under clause 13 of the Bill for the purposes of the national minimum wage? Once such a designation had taken place, the transfer of information would be easier.
§ Mr. Lansley
Yes, it would. However, I am not sure how that would help, because the agricultural wages inspectorate could not be responsible for the entire enforcement procedure across other industries. We must still address the problem caused by the fact that more than one agency will be involved.
We all approach new clause 2 with some humility, because we have not been supplied with notes on clauses, as we were in Committee when they gave us information about the structure of clauses and their purpose before we began our debate. Without new clause 2, adequate legislation would still exist to ensure that Government agencies, which had acquired information for whatever purpose, should not use it for another purpose and should not transfer it to another Government agency. Therefore, why have the Government tabled new clause 2?
The answer may lie in a comment made by the hon. Member for Amber Valley when she mentioned the involvement of more than one agency. Although it would appear that the whole exercise could be accomplished by one agency—for example, the Contributions Agency, which has a wide remit and relates to everyone who would be covered by the national minimum wage—I suspect that it would be convenient for more than one agency to be used. For example, as my hon. Friend the Member for Daventry (Mr. Boswell) pointed out, the agricultural wages inspectorate would seem the logical choice for scrutiny and enforcement of the minimum wage in agriculture.
If more than one agency were involved in enforcement, information would have to be exchanged between the different agencies and Government bodies. I suspect that the existing legislation is restrictive and that the transfer of information about the national minimum wage between different agencies may be difficult to accomplish without specific legislation to allow it. New clause 2 will enable the Government to set aside the more restrictive existing legislation and to choose the appropriate agency to pursue information.
72 Far from new clause 2 meaning stricter enforcement, it is a device to suit the Government's intentions. I make that claim because the hon. Member for Amber Valley mentioned previous legislation and gave as an example legislation on social security administration and the elimination of fraud. She thus illustrated the problem—in previous legislation, Governments rightly referred to specific agencies that had a specific power to transfer between themselves information about their specific responsibilities. The Government have failed to reveal which officers in which agencies will be appointed to be responsible for the enforcement of the national minimum wage. Will it be the Contributions Agency, the agricultural wages inspectorate, the Inland Revenue, Customs and Excise or some other body, or will officers be appointed for that purpose alone?
New clause 2 is a consequence of the Government's failure to specify which officers and which agencies will be responsible for the enforcement of the Bill. That is why the Government will give themselves a wider power than has been enacted in previous legislation. That is a cause for concern, because the civil libertarian anxiety is that Government agencies that are only tangentially related to the purpose of the Bill may acquire some trivial information and use it for their wider purposes. I am sure that that is not what is intended by new clause 2, but that is the civil libertarian concern. To remove that concern, the Government must be explicit about who will get the data and for what purpose.
§ Mr. Ian Bruce
if the Government wanted a Bill that allowed them to transfer information because they were going to take proceedings under it, they would specify "proceedings taken under the Act", instead of "relating to the Act". The Government are giving themselves power to take criminal proceedings against persons on anything to do with wages or income, and not only on the national minimum wage.
§ Mr. Lansley
My hon. Friend is testing my ingenuity on the reason behind new clause 2. I shall not attempt to answer that intervention, but shall leave it for the Minister when she winds up.
I wish to raise a second point, which was my original purpose in seeking to contribute to the debate. My speech thus far was prompted by the contribution by the hon. Member for Amber Valley, which shows the value of contributions by Government Back Benchers. Even if we do not agree with them, we are prompted to cover points more adequately. Earlier, the Minister of State made it clear that many of the changes to the Bill that had not previously been contemplated by the Government were prompted by the need to bring it into line with other legislation. I wonder whether this is such a case.
How does the Minister foresee the interplay between the new clause and the prospective freedom of information legislation, which has an impact rather different from the data protection legislation to which my hon. Friend the Member for South Dorset referred? If such information is to be passed between public bodies, and hence out of the private domain and into the domain of the public sector—not into the public domain as such—it raises the question, in respect of information held by Government bodies to which freedom of information legislation will apply, of the extent to which the 73 legislation will allow access to the information; I hope that it will be not at the level of the individual, but at the level of the firm, industry or sector.
Will the structure of the new clause, perhaps inadvertently, act as a constraint on the use of information? What would happen if the Government wanted to publish the data relating to the take-up of the minimum wage and the relationship between wages and the level of the minimum wage? There will be considerable academic as well as industrial interest in the application of a national minimum wage to an economy that has not hitherto been subject to one to anything like the same extent.
To what extent will Ministers be able to supply, or be constrained from supplying, information at industrial, sectoral or regional level by aggregating data acquired for the purposes of the national minimum wage? If the Government collect and publish information in aggregate, will it be passed outside Departments and into the public domain? That is not, on the face of it, contemplated under the new clause. Can the Minister refer us to some saving measure to show that there is no constraint on the publication of data aggregated for the purpose of elaborating the impact of the national minimum wage?
§ Mr. Bercow
I am moved to comment principally by the contribution of the hon. Member for Amber Valley (Judy Mallaber). It would be an understatement to say that I was saddened and disappointed by her speech. We spent many hours in Committee debating important matters. I hope that she will not take it amiss if I say that she made some of the most thoughtful contributions.
It is in no spirit of hostility that I observe that I was struck by the inadequacy of the hon. Lady's reasoning in backing the Government. In a fit of what looked and sounded like irritation, she said that new clause 2 was essential for the implementation and effective enforcement of the national minimum wage. With that throwaway line, she seemed to suggest that she had obviated the need for further rational argument about the merits of new clause 2, on which several of my hon. Friends made important comments. In short, she appeared to suggest that the ends justify the means. She had not even thought of the need for it, but now she prays in aid her wisdom on the subject. She said nothing about the information provisions previously, but she is now satisfied with what the Government propose. We have several legitimate and serious objections, to which it would be nice to think that the Minister will feel obliged to respond.
As my hon. Friends have made several important points, I shall confine myself to two. The first relates to new clause 2(5), which specifies that information supplied under subsection (4)shall not be supplied by the recipient to any other person or body unless it is supplied for the purposes of any civil or criminal proceedings relating to this Act".That is as may be, but it is not clear what recourse or redress employers have in the event that information supplied to the Secretary of State or another relevant authority is leaked to another relevant authority or, worse, into the public domain, with or without the authorisation of the Secretary of State, maliciously or non-maliciously.
74 I hope that the Minister for Small Firms, Trade and Industry will be able to tell me that I have no cause for concern and that employers in such circumstances will have redress and be able to go to law; that a remedy will be available to them. She is a decent and civilised human being and an effective exponent of the Government's case. She is also a lawyer and knows the importance of rights of redress for those whose rights have been infringed.
My question does not require elaboration. If an employer suffers from the release into the public domain or to another relevant authority information that is damaging to his business or him individually and that release is improper, unauthorised or even malicious, will he be able to secure some redress, compensation or recognition of the fact of wrongdoing by the Government Department or other relevant authority or whoever?
§ Mr. Hammond
I have listened carefully to my hon. Friend's argument. It is a question not only of the Government Department, other relevant department or whoever, but whether an injured party would have redress against the recipient who had leaked the information and whether, separately, he would have redress against a Secretary of State who had originally made the information available.
§ Mr. Bercow
My hon. Friend makes a powerful point. It is of the essence that an employer who has been offended against in such a way should have a right of redress against the Secretary of State, even if the Secretary of State himself or herself had not authorised the release of the information. If the Secretary of State had authorised the information, albeit with no malicious intent, there has ultimately to be an acceptance of responsibility. Nowhere is it more appropriate in the implementation of legislation than in such cases that the Secretary of State should take responsibility. Whether it is a junior departmental official or a senior spin doctor, deliberately or accidentally, with or without authority, ultimately an individual should have redress. The Secretary of State should be held accountable for the inappropriate conduct.
My hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) also raised the important question of the entitlement of the employer who has been offended against to secure redress from others to whom the information has been leaked. Morally, the employer offended against should be so entitled, but, practically, it is doubtful whether it would be possible to secure such redress.
I mentioned, among others, the scenario of the release of information into the public domain. In referring to the public domain, I refer to the likelihood of the information appearing in the media. It is then potentially in the minds of hundreds of thousands, if not tens of millions, of people. It seems improbable that the wronged, possibly aggrieved, employer would be able to secure redress against millions of people, although his grievance would be none the less serious for that.
§ Mr. Hammond
It occurs to me that, although the new clause creates an absolute prohibition on a party who has received information from the Secretary of State passing it on for purposes other than those relating to the Act, it says nothing about the sanction to which such a person would be subject. Might it not be better if the Secretary 75 of State, when making such information available, entered into a restrictive agreement—a contractual arrangement—which might stipulate entitlement to monetary or liquidated damages if the information was passed into the wrong hands, thus making it a matter of contract between the Secretary of State and the recipient if anything went wrong?
§ Mr. Bercow
My hon. Friend is making a worthy attempt, albeit relatively late in the day, to improve the likely consequences of the legislation. However, I am sure that he agrees that it would be preferable that, rather than facilitating such contracts in future, the Bill itself were amended specifically to provide for redress in the circumstances I have described or in similar circumstances. It should not be necessary for the Secretary of State subsequently to have to enter into particular contractual arrangements with others to whom she passes the information acquired. It ought to be stated on the face of the Bill that there is a prohibition on the release of the information to third parties, and that there is a sanction in the event of that release of information.
§ Mr. Ian Bruce
Despite the fear that I shall again be described as nit-picking, I should like to comment on the fact that, having received information from the Secretary of State, one is able to pass it on for the purpose of any civil proceedings. In the English language, civil proceedings do not necessarily take place in front of a court. When reading the phrase "civil or criminal proceedings", one tends to think that they will take place in a courtroom, but one can argue that a solicitor having been given the information and then selling it for a profit to a trade union with an interest in the legislation is "civil proceedings".
§ Mr. Bercow
I am exceptionally grateful to my hon. Friend, because he has picked a useful nit—indeed, his reputation for doing so is legendary and entirely justified. There is a danger of the information being used in that way, and if, as is possible, the Minister thinks that it is unlikely to arise, I should be grateful if she would explain why. More particularly, I should appreciate her saying what she would think of a circumstance of the sort my hon. Friend describes. Does she believe, as I suspect some Government supporters do, that that is simply an unfortunate but acceptable by-product of a worthy piece of legislation?
I should be saddened if the Minister took that view, because she does not have the gaze of the fanatic about her. That is not a comment I could make of several of her right hon. and hon. Friends, who undoubtedly think that all is justified in the service of the wider goal of the national minimum wage. We are concerned with the respect for rights and, in so far as rights are not safeguarded on the face of the Bill, does the Minister accept that there will be people genuinely concerned about the possibility of abuse? I hope that she does accept that and that she will respond to the point.
I should say that, in respect of the Minister, to whom legislation does not refer—it refers, quite properly, to the Secretary of State—I have no qualms, concerns or anxiety at all. I do not wish to drive any more nails into her political coffin, but I regard her as a person of the utmost 76 propriety and integrity. I am not even concerned about the way in which the current President of the Board of Trade might use the information. However, more dastardly figures might arise in future who would use and abuse the information for malign purposes, the effect of which would be to damage individual employers.
The second feature of the new clause to which I want to refer is subsection (6), which states:This section does not limit the circumstances in which information may be supplied or used apart from this section.It is precisely the vagueness and ambiguity of that terminology which gives me cause for concern, and I invite the House to consider the possibility that it lays us open to an abuse. If there are Labour Members, other than those sitting on the Treasury Bench, who know precisely what is to be interpreted by those words and who are able now, via an intervention, to disarm me and to demonstrate beyond peradventure that subsection (6) is entirely innocuous, I shall be happy to hear from them.
It would not be reasonable for those sitting on the Treasury Bench to rise to defend subsection (6), for, if they do so, all the Labour Back Benchers will sheepishly follow their lead and profess that, although they are most grateful to their hon. Friend the Minister for explaining matters for the benefit of me and my right hon. and hon. Friends, they knew that information anyway and were always aware that it was a perfectly satisfactory and harmless subsection. I issue an invitation to a Labour Back Bencher to state explicitly what subsection (6) means—that is the first challenge; the second is to explain why that subsection is innocuous and why I have no grounds for fearing its possible abuse, to the detriment of perfectly decent people in future.
I am veritably staggered—nay, I would be veritably staggered, were it not for experience of Labour Back Benchers—to discover this sudden reticence by which they have been afflicted. At the very moment that I hoped a Labour Back Bencher—I notice some experienced Members among those present—might spring to his or her feet to reassure me what an innocuous subsection subsection (6) is, none of them chooses to do so. All refrain from doing so: they remain seated; they have nothing to say; they are duly embarrassed; they are unable to offer a defence of, or to give their explicit and vocal support for, subsection (6). On the basis of their reticence, I am even more concerned now than I was before I issued the invitation.
I repeat, for the benefit of Labour Members, that subsection (6) states:This section does not limit the circumstances in which information may be supplied or used apart from this section.I give the House one illustration of a scenario in which the information may be used for purposes unrelated to the purposes of the clause, and I invite Labour Members to respond to this scenario. I am not saying that the scenario is bound to occur, or that it is even probable that it will occur; I simply submit for the consideration of the House the possibility that it might occur, and I invite Labour Members to comment.
The scenario is this: wholly unrelated to the implementation of the provisions of the National Minimum Wage Act, as the Bill will shortly become, 77 Ministers of the Crown, for the purposes of what might be described as a name-and-shame policy, choose to release to other relevant authorities or even into the public domain, or allow to be released into the public domain by junior officials or indeed senior spin doctors, information about the employment and wage-paying practices of particular companies. That is potentially a purpose for which subsection (6) could be used; the subsection entitles the use of information for purposes other than those provided for in the clause.
§ Mr. Hammond
I have been following closely my hon. Friend's interesting and detailed argument; his point may be even stronger than he realises, in that subsection (3) would appear specifically to authorise the Secretary of State to use the information for that purpose, it being a purpose relating to the Act—it does not require the purpose to relate to proceedings or a prosecution under the Act, but merely that the purpose should relate to the Act.
§ Mr. Bercow
I am grateful to my hon. Friend. As he was intervening, I looked at subsection (3) again, and I am happy to concede that he could be right. As my hon. Friend would expect, I was erring on the side of generosity and I had not focused on the words "relating to this Act" as intently as my hon. Friend the Member for South Dorset (Mr. Bruce) had done. I had slipped into what was probably the error of thinking that the words "relating to this Act" were innocuous. My hon. Friend the Member for South Dorset has already explained why they might very well not be innocuous and could be used and abused for malign purposes by people acting under the authority of the Act.
§ Mr. Ian Bruce
May I let the House into a little secret? I knew an investigative journalist who, a few years ago, was attempting to embarrass the Labour party by finding out how much each Labour Member was paying his or her research assistant, as it was general knowledge that people volunteered and worked for peanuts. The journalist could not discover the information in sufficient detail to publish it, but, under the Act, inspectors could release that information to journalists because it relates to the Act.
§ Mr. Bercow
If ever there were a good reason for the Government to reconsider their position and recognise the dangers of the existing wording of the clause, my hon. Friend has, in a thoroughly charitable fashion, provided it. I might have hoped that the cause of the national interest, the merits of the case for individual companies and the simple issue of natural justice would cause the Government to rethink, but we are dealing with new Labour, and it is over-optimistic to expect those virtues to come to the fore.
I note that seated at the back of the Chamber are two hon. Ladies—the hon. Members for Preston (Audrey Wise) and for Birmingham, Selly Oak (Dr. Jones)—who are definitely not members of new Labour. It may be that, in relation to the new clause, those hon. Ladies' natural sense of fair play, their preoccupation with justice and the cause of individual and civil rights will come to the fore. Perhaps, when I have concluded my observations, one of them will enthusiastically rise to her feet to agree with what I have said.
My hon. Friend the Member for South Dorset must understand that the Government will not be motivated to shift in our direction for any reason other than self- 78 interest. The prospect that the policies that Labour Members, and perhaps even Labour Ministers, use to pay their own researchers could cease to be a closely guarded secret and could, instead, be dangerously released into the public domain and covered by national newspapers should give them pause for thought.
My anxiety has been simply stated. I fear that subsection (6) and, possibly, as I happily concede to my hon. Friend the Member for Runnymede and Weybridge, subsection (3) could be used for propaganda purposes, which would damage particular companies, entrepreneurs and individual business men who might have fallen foul of the lieutenants of new Labour. That is particularly serious, because information could be released into the public domain that not only damaged certain employers, but did so wrongfully.
§ Mr. Lansley
I am grateful to my hon. Friend, and I hope that he will forgive me if I anticipate a point that he is about to make. We need to know from the Minister whether the Government intend to publish data specifically relating to employers to whom enforcement notices have been issued, because, under the Act, such notices may be issued without the employers having any right to make representations.
§ Mr. Bercow
My hon. Friend makes a valid point, and I hope that the Ministers present will heed it.
§ Mr. Hammond
Further to the intervention of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), it strikes me that the information would not even be subject to the limited safeguards of the new clause, because the information would not have been obtained by an officer, but would have come from the officer's own records, which he had created in the course of his duties. Therefore, there would be no protection.
§ Mr. Bercow
My hon. Friend makes an equally valid point. The danger is that information will be released into the public domain that wrongfully damages particular employers. That might happen because the information about, for example, enforcement notices or penalty notices is incorrect. The possibility of error exists—Ministers have acknowledged that in providing for defences in the context of enforcement notices and penalty notices—
§ Mr. Bercow
My hon. Friend wryly observes that, although Ministers have acknowledged the possibility of error, they have not done so in respect of themselves. He makes a fair point. In fairness, Ministers have acknowledged the possibility of error in respect of an officer issuing an enforcement notice or a penalty notice. The information may be incorrect and, subsequently, it may be successfully contested by an employer. If it is, it will be clear beyond doubt that the information was wrong and that the enforcement or penalty notice should not have been issued.
If, however, acting under subsection (6), the information that has been compiled is used for a purpose unrelated to the Act, before the employer has had the opportunity to clear his name and demonstrate that the enforcement or penalty notice should not have been issued, the damage will have been done. That is why I 79 ask the Minister, in all sincerity, whether she accepts the possibility—not the probability or the likelihood—of abuse.
§ Mr. Bercow
What might start as a private notice could cease to be private after a short period. In Standing Committee, I raised the possibility of information being leaked, perhaps to people with a vested interest in its use, not just to Joe Bloggs who is wholly uninterested in the circumstances. The information could be leaked—either deliberately or accidentally—to somebody with a vested interest in doing down a business rival. The circumstance to which my hon. Friend referred is perfectly capable of arising and, if it did, it would be extremely serious.
§ Mr. Hammond
Will my hon. Friend acknowledge that a particular circumstance has been of concern to Conservative Members throughout the Bill's consideration? It would arise when an employer failed to pay any wages and, under the legislation, enforcement proceedings were taken because that failure constituted, as it certainly would, a failure to pay the minimum wage. Failure to pay wages could signal that something was wrong in the business and that information could be of great value to competitors. Does my hon. Friend agree that, in those circumstances, employers would be right to be concerned about the possible leakage of such information into the public domain?
§ Mr. Bercow
In such circumstances, the release of information would be damaging and unfair in equal measure. If a company were in the gravest difficulty and had not paid the minimum wage simply because a cash flow crisis prevented it from doing so, it would be serious if those difficulties were compounded by the release of information into the public domain, possibly for use against the company by a business rival.
I conclude by asking the Minister for Small Firms, Trade and Industry—as I have already done a number of times during my speech, eloquently aided and abetted by my hon. Friends—the following question: what is the redress? She is a courteous debater, and I hope that she accepts that in no sense are we seeking to frustrate progress on the Bill by discussing these important issues. The Minister of State is always good fun and good sport, but he has a rather nagging and downmarket tendency to resort to his usual attack that we are making these points just to stop the Bill.
In full view of hon. Members on both sides of the House, I say to the Under-Secretary, graciously and without hint of grudge, that she will get her Bill. I wish to ensure that people do not suffer as a result of the inappropriate exercise of power, which is a legitimate anxiety and a proper preoccupation of hon. Members, whatever their political affiliation. I should be most grateful for the Under-Secretary's response to the points that I have made.
§ Mrs. Roche
This has been an amazing, surreal debate. It started well; the hon. Member for Daventry (Mr. Boswell) was so reasonable and made a good response to my opening remarks. I thought that I had been reasonable in my opening remarks, but I have learnt my lesson. I thank Conservative Members for their great contribution to my parliamentary reputation among my colleagues. I am not sure what sort of service they have done me—
§ Mrs. Roche
I am grateful to my hon. Friend for that comment; I must be doing all right.
I agree with the hon. Member for Daventry that, as I said earlier, a balance must be struck between confidentiality and ensuring that the enforcement procedure is right. We want to ensure that the procedure is right; representations were made on that point by hon. Members on both sides in Committee. We started from the premise that the great majority of employers would want to enforce the Bill, and that proper procedures would have to be put in place to ensure such enforcement and to ensure that there would be no abuses.
I shall deal with points that were pertinent to the new clause and the amendments. Hon. Members mentioned unauthorised and improper disclosures. Improper disclosures by Government Departments will be dealt with in the strongest possible terms under internal disciplinary procedures. The previous Government rightly put in place procedures to deal with improper disclosure of information that employers must lodge with the Government, and exactly the same procedures will apply under the Bill.
The hon. Member for Daventry, who is not in his place, asked an interesting question about court proceedings. The hon. Member for South Dorset (Mr. Bruce) asked about civil proceedings—a narrow phrase which covers proceedings that are related to enforcement rights under the Act.
§ Mr. Ian Bruce
The Under-Secretary used the words that I wanted to hear. Why does the new clause use the words "relating to this Act", and not "under the Act"? Those phrases are so different.
§ Mrs. Roche
I do not see any difference—it is a term of art—and I assure the hon. Gentleman that he should see no sinister purpose whatever.
The hon. Members for South Dorset and for Daventry asked about misuse of information by the recipient. The normal injunction procedure, which is well known, should usually prevent misuse of information. Information given in open court may already be in the public domain. In that regard, the Bill does not differ from previous legislation.
§ Mr. Lansley
My hon. Friend the Member for South Dorset questioned me about the words "under the Act" and "relating to this Act", and I have been thinking about that question since he asked it. The Bill will amend legislation such as the Agricultural Wages Act 1948, the Employment Rights Act 1996 and other legislation. Will proceedings take place under the amended legislation and not under the Act, although they will relate to the Act?
§ Mrs. Roche
The hon. Gentleman was a member of the Standing Committee. He will be aware that the Bill 81 amends other legislation to ensure that the legislation is coherent and consistent. The Bill has been drafted carefully to cover proceedings that are related to the Act. There will be two parallel systems, one of which will deal with agricultural wages legislation. The Bill is consistent on that matter.
My hon. Friend the Member for Amber Valley (Judy Mallaber) made an important point and greatly assisted our deliberations. She pointed out that the Conservative Government enacted legislation to make such exchanges of information possible. I did not read press reports of great rebellions by Conservative Members when that was taking place.
§ Mrs. Roche
No, I will not give way; I must make progress.
The hon. Member for South Dorset made a remark with which 1 must take issue straight away. He said that officials were looking amused. Hon. Members well know that officials are never amused; they are absolutely correct at all times.
The hon. Member for South Dorset asked about the grade of officials who will make decisions about vesting authority and about authorising officials to act. As with all other legislation, under the Bill—the hon. Gentleman agreed with this—decisions will be made by officials of the appropriate grade.
§ Mr. Ian Bruce
The Under-Secretary is a friendly boss, which is why she amuses her civil servants, but is it not important to discover whether decisions will be made at an operational level, at which point the person who collects information is authorised by the Secretary of State to pass it on to anybody else, or at a more senior grade? Someone of an appropriate grade may be at the lowest level, as the Under-Secretary has said.
§ Mrs. Roche
I hope that the hon. Gentleman accepts—I am choosing my words carefully—that appropriate level means exactly that. Sensitive information has to be dealt with properly. The new clause is narrowly drawn. I assure the hon. Gentleman that we want the matter to be dealt with in a way that is good for the employer and for the employee.
The hon. Member for South Dorset also mentioned the Child Support Agency and in-work benefits. Tempted though I am to discuss them, I feel that you, Mr. Deputy Speaker, would stop me if I did so.
The hon. Member for Runnymede and Weybridge (Mr. Hammond) asked about information, the use of the word "vests" and ownership. The intention is that information obtained by officials for the purpose of the Act should be treated as held by the Secretary of State. No other effect is intended. The information will not cease to vest with the employer; it could not do so, because the employer would still own the original information. The wording is drawn narrowly because information about sensitive matters is being passed.
§ Mrs. Roche
No, I must make progress.
82 The hon. Member for South Cambridgeshire (Mr. Lansley) asked about the purpose of the clauses. They are meant to clarify the enforcement provisions. As I said when I spoke earlier about the contribution by my hon. Friend the Member for Amber Valley, the model for the provisions is the arrangement in the Social Security Administration (Fraud) Act 1997, which was passed by the previous Administration. They managed to make a contribution to our deliberations on the Bill.
§ Mr. Lansley
Does the Minister accept that the example that she has given specified the agencies that were to collect information on behalf of the Government and the other agencies to which information should be passed? It is specific, not general.
§ Mrs. Roche
I said when I spoke to the new clauses and the amendments that they were contingency measures because we are waiting for the recommendations on enforcement by the Low Pay Commission. There is nothing sinister in that. I am being frank with the House.
The new clauses and the amendments will assist in the enforcement of the Bill. The measure is warmly welcomed by the majority of hon. Members and by the country. It demands proper enforcement procedures, and I commend the new clauses and the amendments to the House.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.