HC Deb 20 March 1998 vol 308 cc1572-82 '.—In proceedings brought before tribunals established under the Employment Tribunals Act 1996, issues in dispute between the parties shall not be treated as if proved, or not proved, unless the Tribunal concludes that they are so proved, or not proved, on the basis of the evidence presented to the Tribunal.'.—[Mr. Lansley.]

Brought up, and read the First time.

12.56 pm
Mr. Andrew Lansley (South Cambridgeshire)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Michael Lord)

With this, it will be convenient to discuss amendment No. 1, in clause 6, page 4, line 39, leave out from beginning to end of line 45.

Mr. Lansley

We shall have further opportunities to congratulate the hon. Member for Wentworth (Mr. Healey), but I do not want to proceed without thanking him on behalf of all those who support the Bill for the time, trouble and expertise that he has brought to steering it through the House. Lord Archer of Sandwell introduced it in another place, where it underwent constructive discussion and amendment. It has been amended in Committee and we now have the first substantive opportunity to discuss some issues that arise from it. I hope that we can do that crisply and effectively, without undermining its cross-party support.

The new clause and the amendment would provide that when employment tribunals have to decide matters of fact or issues presented to them, they will conclude that those issues are proved, or not proved, in the light of the evidence presented to them and, as is customary for such tribunals, on the balance of probability. The central principle is that the balance of probability—not proof beyond reasonable doubt—is a proper test in a dispute between parties.

In some circumstances, which I shall touch on briefly, the Bill and other legislation dealing with disputes brought before employment tribunals—as they will be renamed—undermine the principle of neutrality between the parties, imposing obligations on the employment tribunal to regard certain matters as assumed or to be judged not on the balance of probability but as proved unless the contrary is established. That is to undermine what ought to be the basis of justice that many people perceive when they present their disputes dispassionately to be decided in a hearing.

That will occur, for example, under the National Minimum Wage Bill, which will bring a substantial new class of actions before tribunals. The Bill requires employment tribunals to make several assumptions, such as that a person making a complaint be regarded as qualified for the national minimum wage, and that a person making a complaint that they have not been paid the national minimum wage has indeed not been paid it. In such circumstances, the Bill requires employment tribunals to assume that the complaint is proved unless the employer is able to establish the contrary. A decision will not be made on the evidence or on the balance of probabilities. I shall not dwell on that, because we have had the opportunity to debate the merits of that provision in other legislation.

It would be much to the advantage of the employment tribunal system generally if tribunals were required under this Bill always to examine issues of fact, and make decisions not on the basis of assumptions or bias but on the balance of probabilities and in the light of evidence presented.

I am afraid that there have already been several instances where such a principle has been undermined. For example, under both race and sexual discrimination legislation, it is assumed that complaints are effectively proved unless the employer is able to assert otherwise and refute the complaint with evidence to the contrary. The new clause would not undermine cases presented to employment tribunals even in such difficult and often vexatious circumstances, because there is nothing to stop employment tribunals drawing inferences from the evidence, as long as to do so seems, on the evidence, to be justified and the employment tribunal is able to exercise its judgment on the balance of probabilities.

If the employment tribunal is to make a general assumption about the conduct of employers or circumstances in which racial or sexual discrimination might occur by inference rather than on specific evidence or context, it is entirely possible for the employment tribunal to continue to apply presumption, but to do so not as a response to legislative injunction that it should, effectively, be biased, but on the basis of evidence and the probabilities that it assesses. By their very nature, tribunals rest on the judgment not only of lawyers but of lay members.

Under the Bill and related national minimum wage legislation, the operation of tribunals is moving towards the reflection of the burden of proof directive, which the Community is wishing on us, such that employers will be regarded as engaging in sexual discrimination unless they can prove the contrary. That seems a pretty damaging presumption.

Amendment No. 1 relates precisely to that point, but is concerned with a very particular instance. Clause 6(3) refers to circumstances where somebody makes a complaint about the refusal of an employer to deduct union dues that relate to a political fund contribution. Where such a complaint is made, the employer would have to satisfy the tribunal that the reason for not making such a deduction was connected to matters other than the duty to deduct the political contribution. The employer has therefore to prove the contrary of the assumption made in the legislation. Amendment No. 1 would delete such an assumption.

The purpose of this group of amendments is to touch on the issues surrounding burden of proof and to try to establish in the Bill, in a more concrete way, that the intention is that parties should bring their disputes before a tribunal on the basis that it will exercise a neutral principle—that of examining a case on the basis of the evidence presented. We must disapply some of the other provisions in the Bill that would result in employers being regarded as guilty even before the evidence has been presented and proved.

On that basis, I commend the new clause and the amendments to the House.

Mr. John Healey (Wentworth)

I welcome the debate on new clause 9 and amendment No. 1, but not the reasons that lie behind them. The tabling of 10 new clauses and more than 50 amendments suggests that the purpose of Conservative Members is to impede rather than to improve the Bill. That has less to do with this Bill and more to do with another Bill which, like a will-'o the-wisp, will disappear before their eyes next Friday.

What will not disappear is the widespread desire for my Bill—as it stands, without new clause 9 or amendment No. 1—to reach the statute book. The Bill has had a long gestation and very thorough pre-parliamentary consultation—including on the question of burden of proof before tribunals, which is the subject of the new clause and the amendment. Employers want the Bill, unions want the Bill, the Tribunal Service wants the Bill and the 100,000 people who, by the year 2000, are projected to put cases to tribunals, need the Bill.

I was impressed by the genuine interest in and the strong level of support for the Bill, including on questions covering burden of proof, that I found in personal discussions in the run up to the Bill with the National Association of Citizens Advice Bureaux, the Trades Union Congress, the Confederation of British Industry and the new president of the Tribunal Service, Mr. John Prophet—who, I am happy to say, hails from Yorkshire and was previously regional chairman of the Yorkshire tribunal service. All understand that the Conservative party supports the Bill. Today will be a test of that support—a test of whether Conservative Members mean what they say or whether, as the early signs suggest, they are more interested in manoeuvres to delay the Bill than in helping employers and individuals to get a better system for settling disputes and differences.

New clause 9 has its roots in the National Minimum Wage Bill. It may help hon. Members if I briefly explain the background. There are few hon. Members who are as familiar with that Bill as the hon. Member for South Cambridgeshire (Mr. Lansley). Clause 28 provides, for the purposes of the National Minimum Wage Bill, that an employee is a worker unless the employer can prove otherwise. It also provides that it is presumed that an employee is being paid less than the national minimum wage unless the employer can prove otherwise.

In Committee and in the House, during the long hours of debate on that Bill, the Opposition spoke to a number of amendments they had tabled to probe the issue. I fear that the hon. Member for South Cambridgeshire is returning yet again to the subject. It is surely sensible that the burden of proof should rest with employers. After all, it is the employer who has access to all the information and proof necessary to show the tribunal that the person is a worker and how much he is being paid. It is the employer who holds all the necessary information about remuneration, national insurance records and pay-as-you-earn. It is the employer who is responsible for the contract of employment.

Mr. Peter Atkinson (Hexham)

If it is a question of an employer not deducting union contributions, surely the employee, of all people, would know whether or not his wages included that deduction.

Mr. Healey

The hon. Member for Hexham (Mr. Atkinson) and his hon. Friends start from a misapprehension about the nature of the burden of proof. We are not talking about a presumption of guilt or culpability; it is a question of who is best placed to settle a dispute about the facts, one way or the other. Surely it must be right that the party with access to information should have responsibility for proving its validity. Surely that approach makes common sense and is practical and correct. It does not contain the in-built bias to which the hon. Member for South Cambridgeshire referred or any presumption of guilt before proceedings get under way.

Mr. Lansley

I shall not replay the whole argument, but does not the hon. Gentleman recall that the national minimum wage legislation makes it clear that all the information in the hands of the employer can, by law, under pain of penalty, be taken out of the hands of that employer and given to an enforcement officer? The employer does not have the only access to the records and information.

Mr. Healey

That is correct, but the source of information is the employer. In such circumstances, it makes practical sense for the employer to hold the principal burden of proof where facts are disputed.

It is not simply the national minimum wage that is at stake here. New clause 9 would affect the way in which tribunals operate in a number of other cases. Contrary to the assertion of the hon. Member for South Cambridgeshire, under current legislation, in most cases tribunals require one of the parties to prove his case to them; they require one of the parties to undertake the burden of proof.

Usually, that burden of proof rests with the employee. For example, in unfair dismissal claims, it is for the employee to prove that he is an employee and that he has been unfairly dismissed. However, in certain limited circumstances, that burden rests with the employer. For example, under section 98(1) of the Employment Rights Act 1996, it is for the employer to show the reason for a dismissal and that it falls within one of the reasons under which dismissal is justified. If the employer satisfies those requirements, under section 98(4) of the same Act it is for the tribunal to establish whether the dismissal was fair or unfair. On the ground of reasonableness, the burden of proof in that case is neutral.

I have given three examples of the range of burden of proof under current legislation. Essentially, it is a way of directing the tribunal's attention to the most appropriate source of information. I dwelt on that issue and have perhaps given a fuller explanation than was needed in the hope of anticipating and answering questions that Conservative Members may have on the new clause. The burden of proof proposals in the Bill are the same as those contained in the legislation produced by the Conservative party when it was in power and which were put out to wide consultation in 1996.

Amendment No. 1 makes changes to clause 6, which deals with cases where a worker alleges that his employer has wrongly deducted a political fund contribution or has wrongly refused to deduct union subscriptions from pay. The purpose of the clause is to transfer the jurisdiction for such hearing cases from a county or sheriff court to the tribunal. That is its only purpose. Since the Trade Union Act 1984, when, as Conservative Members will know only too well, the current law on political funds was established, it has been for employers to prove that any refusal to deduct union subscriptions was unconnected with the action of a person to withdraw from paying the political levy.

In other words, it is for the employer to prove that his intentions and motives are in accordance with the law. Amendment No. 1 would remove a long-standing arrangement. It would, in effect, shift the burden of proof on to the worker. It would be difficult, therefore, for the employee to divine his employer's motives or underlying intentions. It would make it difficult, if not impossible, for a worker to prove such a case. That cannot be reasonable.

Neither new clause 9 nor amendment No. 1 has my support or the Government's. I hope that Conservative Members will seriously consider not pressing either the new clause or the amendment.

1.15 pm
Mr. Edward Garnier (Harborough)

I do not want to detain the House for very long, but I want to highlight some of my concerns. When I first read the new clause of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), I was minded not to support him, not least because I found it somewhat difficult to cope with the English. If I may say so, I consider the clause to be inelegantly drafted. I hope that my hon. Friend will not take that as a personal criticism.

I fully understand the purpose behind the new clause. Having listened to what my hon. Friend had to say in explanation of it, I am more persuaded to accept the arguments that lie behind it. I am not convinced by the argument of the hon. Member for Wentworth (Mr. Healey). I congratulate him, of course, on bringing the Bill before the House. I am not yet convinced that his argument on the burden of proof meets the legitimate concerns expressed by my hon. Friend the Member for South Cambridgeshire.

I fully accept that there are different types of case where the burden of proof may rest on the plaintiff, the complainant or the respondent. In some instances, the position is neutral. Under the current system, the law accepts that the burden of proof is not a static concept.

I suggest to the hon. Member for Wentworth and to my hon. Friend the Member for South Cambridgeshire that, by and large, in civil cases—let us for present purposes assume that employment tribunals are related to civil and not criminal law—the tribunal is not too fussed about where the burden of proof lies. It is far more interested in the evidence and how that evidence can be applied to the relevant law. With great respect to both the hon. Gentleman and to my hon. Friend, I do not intend to get too hung up on where the burden of proof should lie in any given dispute. I believe that the courts are capable of assessing what is important and what is not and reaching a fair and just conclusion.

My hon. Friend the Member for South Cambridgeshire is right to point out through his new clause the creeping movement away from placing the duty on the person making a complaint to satisfy the court that his complaint is made out. I accept that in continental jurisdictions, especially when dealing with criminal law, the defendant—the accused person in a criminal case—must satisfy the court that he is innocent before the court will be prepared to acquit him. That is not our tradition. Our tradition is worth investigating to see why we have it, and it is worth examining before we overturn it wholesale.

I fully accept that the hon. Member for Wentworth is not seeking wholesale to overturn the system that we have come to respect on the burden of proof. However, I urge caution on the House. The new clause highlights—and clause 6 amply demonstrates—yet another example of where the burden of proof is moving away from the person making the complaint to the person who is required to answer it. We must remember that the complainer is a volunteer. He is the one who brings the proceedings. He brings the machinery of law to bear. It is the defendant, the respondent or the employer who is there, as it were, involuntarily. It is unjust that an involuntary party to a dispute should have to deal with the burden of proof.

Mr. Edward Leigh (Gainsborough)

It seems to me that the amendment proposed by my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) is otiose. I wonder whether I can get some free legal advice from my hon. and learned Friend, as he speaks with great knowledge on these matters. The definition in the "Oxford Companion to Law" says: The basic rules are that a party asserting an affirmative must prove it, and that a party relying on a fact peculiarly within his own knowledge must establish it. The onus of proof may shift at various stages in a case. Nothing in the Bill as drafted goes contrary to what is in the "Oxford Companion to Law".

Mr. Garnier

I know that there is a tradition at the Bar that we help each other out, but I am certainly not giving my hon. Friend any free advice. I am not sure whether the point he makes assists or hinders our discussion. Unless the Bill makes it clear, the usual rules will apply.

Clause 6(3) specifically says that it falls on the employer to satisfy the burden of proof. There is an express change in where the burden of proof lies.

I fully accept that, under the current law that deals with the recovery of assets of criminals who have already been convicted of drug crime, the burden is on the convicted criminal to demonstrate that what he owns or what he has is not the fruit of any criminal activity.

The constitutional difference is that that man has already been convicted. I think that I am right in saying that the convict, having been convicted under the traditional system, whereby he is innocent until proved by the prosecution to be guilty beyond all reasonable doubt, has to demonstrate that his assets are not the fruit of criminal activity. [Interruption.]

I am not sure that the mutterings from Ministers are terribly helpful, as they may not be well informed. If the Minister cares to respond on behalf of the Government Whip, I am happy to be corrected.

The hon. Member for Wentworth dealt with section 98 of the Employment Rights Act 1996. He is right, but all he demonstrates is that the law is fluid and adjusts itself to meet the circumstances of a given case.

The short point that I make to my hon. Friend the Member for South Cambridgeshire, apart from the rather pompous remark about the English of his new clause, is that I congratulate him on highlighting an important issue. The burden of proof is not something which we should lightly move around or dispense with without the most careful thought.

Mr. Geoffrey Clifton-Brown (Cotswold)

My hon. and learned Friend is making an extremely important point. Burden of proof is even more important in relation to tribunals and arbitration because there is no appeal on those except on a point of law, whereas if it were a normal case in the courts, recourse to appeal would be readily available.

Mr. Garnier

That is another point which the House is entitled to bear in mind. I shall not develop it now, as a number of hon. Members wish to speak. I am simply highlighting the issues between the hon. Member for Wentworth and my hon. Friend the Member for South Cambridgeshire. I trust that, before the Bill goes much further, a good deal more thought will be given to that question.

Mr. Owen Paterson (North Shropshire)

I congratulate the hon. Member for Wentworth (Mr. Healey) on bringing the Bill this far on behalf of Lord Archer of Sandwell. It is a great privilege to introduce a private Member's Bill.

I strongly urge the House to support new clause 9. I should declare an interest, as I had been in industry all my life until 1 May. I regret to inform the House that employers are disillusioned about their chances in industrial tribunals, and that leads to the nub of the new clause: there must be no dilution or weakening of the mechanism by which proof is brought to a tribunal.

We have had an interesting contest between learned lawyers on the Opposition side. I want to give the House two or three examples of real life. The current system is unsatisfactory. A company that I know well had a redundancy programme. One employee was made redundant, along with a large number of others. He had worked satisfactorily for a long time and there had never been any complaint about him. Simply, the world market had changed, demand had dropped and a substantial number of people sadly had to be made redundant.

In the course of the redundancy programme, things changed. The employee was called back in, given a personal interview by the managing director, and offered a job. The managing director kept a written diary of events every day. He wrote down that the interview had taken place, and an offer was made in writing at the same level of remuneration. Amazingly, the company was sued for unfair dismissal and, rather than go through with the tribunal, it settled out of court. That cost the company several thousand pounds. On the strength of that, several others in the programme pulled off the same trick.

Mr. Healey

Perhaps the hon. Gentleman could explain how his example relates to the burden of proof. I made it clear that, in unfair dismissal cases, the primary burden of proof is on the employee rather than the employer. Does the hon. Gentleman agree that that runs contrary to the points being made by his hon. Friends?

Mr. Paterson

The point that I am trying to make is that the current system is not entirely satisfactory. The new clause tabled by me and my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) will prevent any further dilution. I shall give a couple more examples in a second. I am concerned that the burden is slipping more and more onto the employer to prove that he is not guilty, as my hon. and learned Friend the Member for Harborough (Mr. Gamier) has said.

An employee of a business that I know in the modular building sector stole some wire. He admitted it to the personnel director. He was dismissed on the spot, as per the rules agreed by the work force and the company. Amazingly, he went to a tribunal and, because there were no witnesses when he was interviewed by the personnel director, he won the case. A self-confessed thief received compensation of £6,000, which seems bizarre. It is most disheartening for employers.

In another company in the telecommunications industry, an employee had an appalling attendance record. It was a big, well-organised business. It was unionised. The union did not support the plaintiff's case. The man had gone through all the rigmarole of verbal and written warnings and was dismissed because he had not provided a medical certificate as per the rules laid down by the company. The medical certificate turned up seven days after he had been dismissed. He took the company to a tribunal. Great analysis was made of the stamp and the time of posting. Common sense would say that the employee had a weak case, but, again, he won. Common sense suggested that right was not on his side, but the tribunal went against the company. The matter is critical. Proof in such cases depends on all the evidence being presented. Our new clause requires that it be provided.

The other massive disadvantage to employers is that a date is fixed for a tribunal. If members of the management cannot attend, another date is arbitrarily fixed on which members of the management have to attend.

A senior salesman in the robotics industry was made redundant by a sales director, who then went to the United States on a three-month secondment. The salesman complained, the tribunal laid down a date for a hearing, and the company had to decide whether to bring the sales director back from the United States to attend the tribunal. Tribunals usually start at 10 am, and sometimes run over into the next day, so the sales director might have had to stay in the United Kingdom for two days before flying back to the United States. The case could have taken up a whole week of a senior sales director's time.

1.30 pm

The case was dropped, and settled outside the tribunal. For the company, it was not worth the bother of bringing the sales director back from abroad. Cases involving production staff are much worse, because several senior managers may have to attend a tribunal, which might take up more than a day of their time if they are not called until late afternoon on the opening day. The cost of tribunals to continuous process industries can be horrendous, because senior technicians have to be away from work. Managers, especially those in smaller companies, are worried that going to tribunal is not worth the candle. Therefore, they settle out of court, which cannot be right.

The alternative is a civil court, but such proceedings take too long. A tribunal can pay a maximum compensation of £25,000, so senior executives are forced to go to law and employ the services of people such as my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Gainsborough (Mr. Leigh). Civil court proceedings are far too costly and take far too much time, so I am in favour of the tribunal system. I strongly support new clause 9, because it is vital to provide maximum evidence if employers are not to become disillusioned with the Tribunal Service.

Mr. Anthony Steen (Totnes)

When I was asked to take on this Front-Bench job for today—

Mr. Graham Allen (Lord Commissioner to the Treasury)

A long overdue promotion.

Mr. Steen

That is absolutely right.

It is an honour and a privilege to have been asked to take on this Front-Bench job. The only snag is that hon. Members have ensured that I have not spoken until 1.31 pm, knowing that the debate would end by 2.30 pm. They had a different agenda: they wanted to give me the honour and privilege of sitting on the Front Bench without having the opportunity to hear me speak.

My contribution will be short, but pithy. I want Labour Members to realise that we not only support the Bill and want it to go through the House as effectively and efficiently as possible but were designing such a Bill before the unfortunate events of 1 May. It is no good their thinking that we are opposed to the Bill and are trying to talk it out. Nothing could be further from the truth.

Hon. Members will appreciate the quality of the speeches and arguments of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) and my hon. and learned Friend the Member for Harborough (Mr. Gamier). Conservative Members are engaged in high-quality debate, which may be why so many Labour Members are absent: they may feel that the debate is of such high quality that they cannot grasp the arguments.

I am glad that the hon. Member for Wentworth (Mr. Healey) is present. He clearly can follow the debate, although he may be struggling a little.

The relationship between employer and employee can be difficult and in a civilised society it is important to have an effective system for the hearing and satisfying of grievances. There is, however, a certain irony in our legislating for a quicker, cheaper and less formal way of removing the burden from the system of tribunals—which was itself a way of removing pressure from the courts. We hope that we shall not have to devise a system to remove pressure from voluntary arbitration. That is what the Bill is about, but new clause 9 deals with the burden of proof—an issue which strikes at the root of our legal system.

This country can proudly say that a man is presumed innocent until he is proved guilty. That is what the new clause is about: it is about ensuring that the employee is not in a privileged position as against the employer; it is about producing neutrality. I understand that, without the new clause, the employee will be privileged: it will be presumed that he is innocent and the employer is guilty. That is why members of my party are so keen for the new clause to be accepted. Although we support the Bill—and, perhaps, have been the architects of it over many years—there is growing concern, as can be heard, that this problem needs to be put right.

Mr. Leigh

I have some difficulty with my hon. Friend's argument. Traditionally, the whole point of the tribunals that we are discussing has been their informality and accessibility. I must tell my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), with respect, that the wording of his new clause could benignly be described as dense or difficult to understand, and that it could even be described as near gobbledegook. How will it further the informality and accessibility of tribunals?

Mr. Steen

It is always a joy to see my hon. Friend in the Chamber—although on this occasion I would have preferred him not to be present.

My answer to my hon. Friend is simple. If I may say so, I do not think that he entirely understands the thrust of the Bill, which, as I understand it, is to provide an informal arbitration arrangement. The industrial tribunal—which is being renamed—is just one of the methods that an employee can use in an attempt to claim his rights. Employers have rights as well, however.

The Bill provides three ways in which an employee can claim his rights. First, he can use the system that his company may have for dealing with disputes. Many large companies have their own internal processes. That way of seeking redress is very informal. The employee approaches his company, with or without the help of the union, and presents his problem. Secondly, with the agreement of his employer, the employee can ask for arbitration. The whole point of the Bill is to enable employees to take advantage of an informal arrangement simply because the industrial tribunal has become too formal. What was established as an informal procedure has become over-formal. All that my hon. Friend the Member for South Cambridgeshire seeks to do is correct the burden of proof in relation to more formal proceedings. I suggest that my hon. Friend the Member for Gainsborough (Mr. Leigh), whose skill, intelligence and ingenuity are respected in all parts of the House, considers the Bill in the round and does not worry too much about the burden of proof provision in the new clause. I hope that he is satisfied with that answer.

I am concerned about the time that will be available to debate the excellent amendments and new clauses that have been skilfully and responsibly formulated by my hon. Friends. It would be discourteous to the House to say more on the new clause. We are debating a splendid Bill. We got it right and the Government have taken it on and, perhaps, made some changes. The new clause would make it even better. If the Government cannot accept the rather skilful, but perhaps not entirely clear, wording of the new clause, perhaps my hon. Friend will withdraw it on the basis of the Government's agreeing to produce better wording.

The Minister of State, Department of Trade and Industry (Mr. Ian McCartney)

I welcome the hon. Member for Totnes (Mr. Steen) to the Dispatch Box. Over the past 11 years, his attempts to get there have ended in abysmal failure and I am pleased that on this occasion, albeit for a short time, he is able to speak from the Opposition Front Bench. I hope he gets an opportunity to do that more often so that I can engage in debates with him—as I have for many hours in Committee.

As the hon. Gentleman said, the Bill's proposals were put out for public consultation by the previous Administration, but they failed to act. That has been left to us. We have the full support of the Confederation of British Industry, the Institute of Directors and employee and employer organisations throughout the country. The previous Government put the burden of proof provision in the proposal that went to consultation and was accepted in principle.

The hon. Gentleman said that the Conservatives got the Bill right when they were in government. It is therefore nonsense to ask us to amend a clause which, under the previous Government's consultation, was accepted by both sides of industry as an acceptable way to proceed.

Hon. Members are under a misapprehension: the Bill is not a threat to employers. There is no presumption of guilt. The hon. Member for Gainsborough (Mr. Leigh) got it right in the best and shortest summing up that I have heard in the House in 11 years: the hon. Member for South Cambridgeshire (Mr. Lansley) was talking gobbledegook. I can put it no better than that. He and I spent some time debating the National Minimum Wage Bill and it is obvious that he is not prepared to forget the fact that, despite his attempts to encourage us to do so, we were not prepared to change the concept of the burden of proof as it relates to that Bill or to this one. It does no more and no less than identify for the purposes of the process who is best responsible for providing factual information on which decisions are based. I ask hon. Members to resist new clause 9 and to leave the Bill as it stands, because, as I have said, it has the support of both sides of industry.

Mr. Lansley

I think that my hon. Friend the Member for Gainsborough (Mr. Leigh) was criticising the drafting of new clause 9. In that respect, I fear that I am not a lawyer and perhaps did not explain the matter well enough. However, the point, which was made in the debate, is that, as my hon. Friend the Member for Totnes (Mr. Steen) made plain, there will be a natural presumption for the burden of proof to be established in tribunals or courts on the basis of the evidence. Increasingly, and in too many cases, the burden of proof rests on one party and a presumption is required of the tribunals by way of statutory injunction rather than on the basis of the evidence that is presented by the two parties.

I am grateful to the hon. Member for Wentworth (Mr. Healey) for the spirit in which he contributed to the debate. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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