POWER TO CONFER RIGHTS ON INDIVIDUALS: AMENDMENT (Hansard, 8 July 2002)

§ Alan Johnson
I beg to move, That this House agrees with the Lords in the said amendment.
This is a technical amendment that does not in any way alter the scope of the power in section 23 of the Employment Relations Act 1999. The power enables the Secretary of State to confer employment rights on individuals who do not currently have them. The amendment's effect is that we would need to confer rights on individuals by an order that amended existing legislation and not by an order that just spelt out the rights to be extended. It would not alter the rights that we could confer, the individuals on whom we could confer them or the way in which any rights conferred would work in practice.
We listened to the opinions of the noble Lords in debating this issue. They argued strongly that the words "or otherwise" were not appropriate and gave the Secretary of State additional powers to extend rights other than by a statutory instrument. On balance, we considered 650 that since the words "or otherwise" had been understood in that way, we should not retain the current wording simply on the basis that it gave us some flexibility. The advice of Lords Ackner and Brightman cannot lightly be set aside.
The amendment may not please the draftsman should we decide to use the power under section 23, but I hope that it will alleviate concerns raised in the other place that we were intending to circumvent Parliament by use of the words "or otherwise". Removing those words will not limit the scope for conferring statutory employment rights on individuals to whom the rights do not currently apply. As Members will be aware, a review of employment status in relation to statutory employment rights is under way, and we intend to publish a discussion document on employment status this month.

§ Mr. Hammond
The story behind the amendment is extraordinary. I take issue with the Minister when he says in one breath that this is a technical amendment and in the next that the opinions of Lords Ackner and Brightman cannot be lightly dismissed. Lord Ackner opened his speech on Third Reading in the other place by saying: This is not a small and technical matter, as the Minister said".—[Official Report, House of Lords, 27 June 2002; Vol. 636, c. 1530.] Ministers in the other place sought to present this as a technical matter, and the Minister has repeated that this afternoon, but that is not so.
The Minister, like his noble but sometimes discourteous Friend Lord Sainsbury, also managed to avoid giving any credit to my noble Friend Baroness Miller of Hendon, without whose unstinting determination this amendment would not have been brought to the attention of Lords Ackner and Brightman and, ultimately, accepted by the Government. Indeed, Baroness Miller had to table the amendment three times and put up with a good deal of rather ungentlemanly ridicule from the Government Dispatch Box before the wisdom of what she was advocating came to be recognised. She apologised on Third Reading when she introduced this amendment for the third time, explaining that she was compelled to do so by the Government's obdurate refusal"—[Official Report, House of Lords, 27 June 2002; Vol. 636, c. 1528.] to accept the deletion of the two offending words from the Employment Relations Act 1989.
When I read the Lords debate, I was disappointed and, frankly, surprised to note the patronising tone with which Ministers in that place, who seem to be far less courteous than their counterparts in this place, dealt with my noble Friend. Many of my hon. Friends will know Baroness Miller well, and would know better than to step in her way when she is determined to achieve something. Terriers with bones have nothing on my noble Friend.
6.30 pm
Apparently, Lord Sainsbury was not aware of my noble Friend's reputation and determination. The first time that she tabled the amendment, he sought to dismiss it by making repeated spurious references to someone called Doreen, then essentially telling her to go back to her kitchen sink and stop meddling in matters that did not concern her. The second time that she tabled it, the noble Baroness was told that the matter was trivial and technical, and that she had failed to understand it. It is 651 remarkable that she was prepared to persist as she did, ultimately engaging the eminent and learned Lords Ackner and Brightman in considering the matter more carefully. In their speeches on Third Reading in the other place, they made it clear that the issue needed to be dealt with.
The original provision in section 23 of the Employment Relations Act 1999 says that the Secretary of State has the power to confer certain rights on individuals. Subsection (5) states: An order under this section may make provision in such way as the Secretary of State thinks fit, whether by amending Acts or instruments or otherwise. Several months ago, my noble Friend brought that section of the 1999 Act to the shadow Department of Trade and Industry meeting and asked all of us around the table if any of us had any idea what "or otherwise" meant. I have to confess that we were unable to help her. She went the Library and asked them to search for any elucidation as what the phrase "or otherwise" means, but they told her that they were unable to help. On 4 December, the Minister, Lord Sainsbury, told the noble Baroness that the purpose of the words "or otherwise" was: 'intended to ensure that an order under section 23 could also apply to rights to individuals by means of a free-standing provision rather than an amendment.' So my noble Friend, tenacious as ever, went back to the Library and asked them to look up a legislative device known as a free-standing instrument, but they could not find one, and we came to the conclusion that the law knows of no such instrument.
On Third Reading, my noble Friend tabled the amendment yet again, albeit to a different part of the Bill. Originally, with typical humility, she tabled it as a minor and consequential amendment, but having listened to Lords Ackner and Brightman she realised that it should not relate to the clause entitled "Minor and Consequential Amendments" because it was not a minor change, but a very significant one. She therefore moved the amendment to the appropriate part of the Bill. When the Minister responded to the debate, he appeared at first to be sticking to his guns. He said: However, it is still my view that it does no such thing. That is, that the provision did not have the implications that the noble Baroness was suggesting. But the Minister was visibly affected by the interventions of Lords Ackner and Brightman, and I understand that a scurry of paper support was forthcoming during the time when he was on his feet. Having spent nearly two columns of Lords Hansard explaining why my noble Friend was wrong, at the end he capitulated in one paragraph by saying: In view of the very strong pleas by both noble and learned Lords"— no reference to my noble Friend— that they do not believe the Government's measure is appropriate, on balance we are prepared to accept the amendment."—[Offcial Report, House of Lords, 27 June 2002; Vol. 636, c. 1529–34.] That was after taking up some 15 minutes of the House's time explaining why my noble Friend was still wrong.

§ Rob Marris
I am slightly confused, and perhaps the hon. Gentleman could elucidate something for me. He referred to a free-standing provision and said that when 652 the noble Lady looked for it in the Library she found that there was no such instrument. Did the Law Lords suggest that a constitutional innovation had been made in the Bill, or did they say something else that persuaded the learned Lady and the hon. Gentleman that the provision needed to be changed?

§ Mr. Hammond
My noble Friend is not learned in the technical sense. It was Lord Sainsbury who said: 'The use of 'or otherwise' was intended to ensure that an order under section 23 could also apply to rights to individuals by means of a free-standing provision rather than by an amendment.'"—[Official Report, House of Lords, 27 June 2002; Vol. 636, c. 1529.] The Minister himself introduced the concept of the free-standing provision, which, as it turned out, did not take the debate much further.

§ Mr. Prisk
Is my hon. Friend aware that in addition to the apparent confusion there seems to be a direct contradiction in what Lord Sainsbury said? In December he wrote to the noble Baroness saying that the words do not extend the powers of the Secretary of State, yet he told the Grand Committee on 22 April: 'The noble Baroness's amendment would simply take away the current flexibility for the Secretary of State to extend rights in a way that is best from a drafting point of view.'"—[Official Report, House of Lords, 18 June 2002; Vol. 636, c. 701.] Does my hon. Friend share my concern that such contradictions undermine confidence in the way in which the Bill is being presented?

§ Mr. Hammond
I entirely agree with my hon. Friend. There were several contradictions in what the Minister in the other place said in the course of debates on the amendment. We may be talking about an unusual case in the other place and an unusual Standing Committee in this place, but in reading the debates I was struck by the fact that the courtesy that was extended by and to hon. Members on both sides during the Committee looks rather good in comparison to what went on in the Lords, where one typically expects to see higher standards of courtesy than those that we extend to each other in this place.
The substantive point that concerns me is that on three occasions the Minister sought to rubbish my noble Friend's amendment, both in terms of its substance and his argument against it and of the rather patronising and disparaging remarks that he made during his speeches. On three occasions he said that the amendment was misguided, unnecessary and did not do what the noble Baroness thought it did, yet at the end of the third such dismissal of her amendment, he capitulated, saying to the House: In view of the very strong pleas by both noble and learned Lords … on balance we are prepared to accept the amendment"—[Official Report, House of Lords, 27 June 2002; Vol. 636, c. 1534.] That is not the way to conduct legislation. Either the noble Lord believes that the amendment is unnecessary, argues his case and stands his ground, or he accepts, with some humility, that he was wrong on the two previous occasions, that he owes my noble Friend an apology, and that the Government were accepting the amendment on the basis of solid argument, not as an afterthought because it was nearly dinner time and they could not be bothered to argue the case any longer. The way in which the matter was conducted in the other place has not enhanced the reputation of Parliament and compares unfavourably with 653 the way in which the consideration of the Bill—I do not say all Bills, but this Bill—has been conducted in this place.
Given that I am happy again to put on record that the Minister has been far more gracious than his noble Friend appears to have been to my noble Friend, I hope that he will place on record an acknowledgement that it was her hard work and persistence, in the face of repeated and sometimes rather unsavoury stonewalling by the Minister in the other place, that ensured that this important amendment has been made to the Bill.

§ Alan Johnson
The hon. Gentleman took about 12 minutes to make a meal of what happened in the Lords. He told a fascinating story of intrigue, conflict and passion which set the blood racing through my veins. I am very happy to pay tribute to Baroness Miller, whose role is clearly set out in my brief, although I did not mention her contribution in my speech.
Just as Baroness Miller personifies tenacity, my noble Friend Lord Sainsbury personifies courtesy and politeness. The picture of my noble Friend painted by the hon. Gentleman is unrecognisable. I would have thought that Baroness Miller would be the last person to suggest that my noble Friend was in any way discourteous or patronising. It is not in his blood to be that way. He would probably find it physically impossible to behave like that—unlike me; I am just a ruffian.

§ Mr. Hammond
Baroness Blatch was moved immediately the Minister sat down on Third Reading in the other place to say that, in not acknowledging the role of my noble Friends, the Minister has been extremely ungracious"—[Official Report, House of Lords, 27 June 2002; Vol. 636, c. 1534.] This is not just my view; it was that of my noble Friend and, I suspect, other Members of the other place at the time.

§ Alan Johnson
It all sounds like a rowdy evening down at the Red Lion. The House of Lords doubtless gets into that state occasionally.
I will pay tribute to Baroness Miller for her contribution. I also pay tribute to my noble Friend Lord Sainsbury and his colleagues for doing an exceptional job on this Bill in the House of Lords for many weeks and even months. I am happy that on this issue we have reached a sensible conclusion, and I hope that the House accepts the Lords amendment.