HL Deb 15 July 1999 vol 604 cc561-83

(" .—(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's sexual orientation.

(2) In subsection (1) "employment matter" includes—

  1. (a) the offer or refusal of employment;
  2. (b) the termination of employment;
  3. (c) terms and conditions of employment;
  4. (d) the provision of training or skills development opportunities;
  5. (e) promotion and career progression.

(3) Regulations under subsection (1) may—

  1. (a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
  2. (b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
  3. (c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above.

(4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")

The noble Lord said: My Lords, I shall try not to detain your Lordships too long on this amendment. Those of us who have been present during the various stages of the Bill will realise that it is the same as the amendment my colleagues in another place produced when the Bill was considered there. We have taken it through for debate and discussion in Committee and on Report. I do not want to rehearse at Third Reading the evils of discrimination on the grounds of sexual orientation, which have been widely canvassed and are generally accepted on the government side and by certain members of the Conservative Opposition.

This new clause embodies the principle that was set out in the Labour Party manifesto for the 1997 general election, which says that Labour intends to seek to end unjustifiable discrimination wherever it exists. The matter was considered again in your Lordships' House in June 1998 when, following the collapse of the Bill on sexual orientation and discrimination, the noble Baroness, Lady Blackstone, promised that the Government were committed to giving serious consideration to the issues raised by the Bill. A year later, we are still waiting for the Government to bring forward proposals to deal with this important issue.

We are persisting with this amendment to the Bill because, as we said at Report stage, we are only two years or so away from the next general election. We have been waiting since Labour's election for this important matter to be dealt with and the Government have stated consistently that they will address it. However, my colleagues and I are beginning to suspect that the Government are adopting what I call the St Augustine position: "I have every intention of becoming pure, but not yet. In any event, it is not my departmental responsibility".

As the Government are not prepared and have not indicated any preparedness to deal with this important issue, I believe that this amendment should be made to the Bill. I beg to move.

4.30 p.m.

Earl Russell

My Lords, the shouting and the battle die and the captains and the kings depart. The Chamber is very empty compared with only a few minutes ago. Yet the people affected by this new clause may number more than the entire population of Northern Ireland.

This is an amendment of considerable importance. My noble friend has argued from a narrow base that it is in line with government policy, but I will address the issue from a wider base. It is the central thrust of the Government's approach to welfare and work to remove barriers to people's entry into employment. Apart from the human suffering involved, the cost to the Exchequer of doing otherwise is likely to be considerable.

A very large number of people, who are normally willing and eager to work, are often prevented from doing so. Alternatively, having succeeded in gaining employment, many others are pushed out by the hostility—sometimes indulged rather too freely—of their colleagues. We are talking about not only the direct refusal of employment but, as is often the case with women making their way in hitherto all-male professions, a good deal of harassment designed to push people out. That creates not only considerable hardship but also a cost to the Exchequer. Under the actively-seeking-work rules, voluntary unemployment may carry a penalty of 26 weeks' loss of benefit.

It is often quite difficult to prove that one has been pushed out of a job—even when that is patently obvious. Therefore, people are either left dependent upon benefit or left destitute through no fault of their own. That is contrary to the general thrust of government policy. Action is needed quite urgently in the interests both of those concerned and of wider society. We must learn to live at peace with the sorts of people we meet daily. It is also in the interests of the Exchequer. I do not know what more one needs to say in support of an amendment.

Lord Sainsbury of Turville

My Lords, as I said in Committee and on Report, we are very sympathetic to the problems faced by people who have been, and will be, discriminated against on grounds of sexual orientation. Having said that, I must repeat that, regretfully, we cannot support this new clause. I have outlined our reasons in Committee arid on Report, so I shall not repeat them here.

As the issue needs to be handled with great sensitivity, it is incumbent upon us to ensure that, whatever action is taken, the results will not be counter-productive for gay men and lesbians. On the question of whether a legislative measure would be the appropriate way to proceed, the Government have always been aware that it is not good practice to take regulation-making powers without knowing how we wish to use them. As noble Lords will be aware, the Government have responded to the recommendations and suggestions put forward by the Equal Opportunities Commission and the Better Regulation Task Force. Copies of those responses have been placed in the Library of the House.

We agreed yesterday that a non-statutory code outlining good practice would be a sensible approach to combating discrimination in the workplace on the grounds of sexual orientation. This would help to produce a clarity that would assist employers and individuals. In due course, the Government would evaluate the effectiveness of the code and gain better information about the levels and types of sexual orientation discrimination experienced by gay men and lesbians.

We propose that such a code be produced in conjunction with the Equal Opportunities Commissiion and in full consultation with informed relevant organisations, such as the TUC, industry, Stonewall, the Church and the forces. I am sure that the House will agree that that is the best way to deal with this important and sensitive issue. As the House will appreciate, I cannot give any further details. The code is a matter for my ministerial colleagues at the Department for Education and Employment who, I understand, will make a statement in due course about the details of the code.

Throughout the passage of the Bill in this House, the noble Lord, Lord Razzall, has moved his amendments with great sincerity and determination. I hope that I have convinced him of the Government's sincerity and commitment to act, as appropriate, against discrimination on the grounds of sexual orientation. I hope that I have assured him that we are embracing purity, if not quite as fully as he would like at this stage. I invite him to withdraw his amendment.

Lord Razzall

My Lords, as the Minister will be aware, we on these Benches have supported the Government in all the amendments that they have made to this Bill. As to our major concern about age discrimination, we have accepted the Minister's undertakings at Committee and Report stages that it was inappropriate to seek a legislative provision. However, having listened to the Minister's comments in Committee, on Report and again this afternoon, I would like to test the temperature of the House.

4.38 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 126.

Division No. 1
CONTENTS
Beaumont of Whitley, L. Newby, L.
Calverley, L. Phillips of Sudbury, L.
Carlisle, E. Razzall, L. [Teller.]
Clement-Jones, L. Redesdale, L.
Dholakia, L. Rochester, L.
Falkland, V. Rodgers of Quarry Bank, L.
Geraint, L. Russell, E. [Teller.]
Grey, E. Sandberg, L.
Sharp of Guildford, B.
Hamwee, B. Smith of Clifton, L.
Harris of Greenwich, L. Taverne, L.
Linklater of Butterstone, B. Thomas of Walliswood, B.
McNair, L. Thomson of Monifieth, L.
McNally, L. Thurso, V.
Mar and Kellie, E. Tope, L.
Methuen, L. Wigoder, L.
Miller of Chilthorne Domer, B. Williams of Crosby, B.
NOT-CONTENTS
Acton, L. Ashbourne, L.
Ahmed, L. Ashley of Stoke, L.
Allenby of Megiddo, V. Barnett, L.
Amos, B. Belhaven and Stenton, L.
Archer of Sandwell, L. Berkeley, L.
Blackstone, B. Jeger, B.
Blyth, L. Jenkins of Putney, L.
Borrie, L. Judd, L.
Bragg, L. Kennet, L.
Brooke of Alverthorpe, L. Knutsford, V.
Brooks of Tremorfa, L. Leigh, L.
Bruce of Donington, L. Lockwood, B.
Burlison, L. Lovell-Davis, L.
Carter, L. [Teller.] McIntosh of Haringey, L. [Teller.]
Castle of Blackburn, B.
Charteris of Amisfield, L. Mackenzie of Framwellgate, L.
Christopher, L. Mallalieu, B.
Clarke of Hampstead, L. Marsh, L.
Clinton-Davis, L. Milner of Leeds, L.
Cocks of Hartcliffe, L. Mishcon, L.
Crawley, B. Molloy, L.
Dacre of Glanton, L. Monkswell, L.
David, B. Monson, L.
Davies of Oldham, L. Montague of Oxford, L.
Dean of Thomton-le-Fylde, B. Morris of Castle Morris, L.
Desai, L. Morris of Manchester, L.
Diamond, L. Murray of Epping Forest, L.
Dixon, L. Newall, L.
Donoughue, L. Nunburnholme, L.
Dubs, L. Oppenheim-Barnes, B.
Dunleath, L. Paul, L.
Erroll, E. Pearson of Rannoch, L.
Evans of Parkside, L. Peston, L.
Evans of Watford, L. Pilkington of Oxenford, L.
Falconer of Thoroton, L. Pitkeathley, B.
Farrington of Ribbleton, B. Ponsonby of Shulbrede, L.
Fitt, L. Puttnam, L.
Gilbert, L. Ramsay of Cartvale, B.
Gladwin of Clee, L. Randall of St. Budeaux, L.
Glentoran, L. Rendell of Babergh, B.
Gordon of Strathblane, L. Richard, L.
Goudie, B. Rogers of Riverside, L.
Gould of Potternewton, B. Sainsbury of Turville, L.
Graham of Edmonton, L. Sawyer, L.
Serota, B.
Grenfell, L. Sewel, L.
Hacking, L. Shepherd, L.
Halsbury, E. Simon, V.
Hanworth, V. Simon of Highbury, L.
Hardie, L. Smith of Gilmorehill, B.
Hardy of Wath, L. Stallard, L.
Harris of Haringey, L. Stoddart of Swindon, L.
Harris of High Cross, L. Stone of Blackheath, L.
Haskel, L. Strabolgi, L.
Hilton of Eggardon, B. Symons of Vernham Dean, B.
Hollis of Heigham, B. Taylor of Blackburn, L.
Howie of Troon, L. Tenby, V.
Hughes, L. Thornton, B.
Hughes of Woodside, L. Tomlinson, L.
Hunt of Kings Heath, L. Uddin, B.
Irvine of Lairg, L. [Lord Chancellor.] Walker of Doncaster, L.
Warner, L.
Janner of Braunstone, L. Whitty, L.
Jay of Paddington, B.[Lord Privy Seal.] Williams of Elvel, L.
Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.48 p.m.

Clause 32 [Employment rights: employment outside Great Britain]:

Lord Simon of Highbury moved Amendment No. 7:

Page 16, leave out lines 23 to 28 and insert— ("(7) The provisions mentioned in subsection (8) apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if—

  1. (a) the ship's entry in the register specifies a port in Great Britain as the port to which the vessel is to be treated as belonging,
  2. (b) under his contract of employment the person employed does not work wholly outside Great Britain, and
  3. (c) the person employed is ordinarily resident in Great Britain.")

The noble Lord said: My Lords, this amendment is a purely technical change to the amendment on territorial extent which was introduced at the Report stage last week. It relates to subsection (4) relating to mariners.

Subsection (4) is intended to preserve the special position of mariners. However, the current wording fails to do that precisely; hence this technical amendment, which ensures that the current position of mariners is unchanged under the new provision. I beg to move.

On Question, amendment agreed to.

Clause 46 [Extent]:

Lord McIntosh of Haringey moved Amendment No. 8:

Page 20, line 24, leave out ("section 39") and insert ("sections 39 and 45")

The noble Lord said: My Lords, the amendment ensures that a commencement of a provision in the Bill that amends or repeals a provision in other legislation extending to Northern Ireland itself extends there. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Collective Bargaining: Recognition]:

Lord McIntosh of Haringey moved Amendment No. 9:

Page 21, line 36, at end insert ("or 44")

The noble Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendment No. 10 and to Amendments Nos. 12 to 26. All of these amendments are minor and correct or clarify provisions in Schedule 1. None is intended to alter the substance of the schedule.

Amendment No. 9 introduces a cross-reference which ensures that the same definition of collective bargaining applies to the tests in paragraphs 35 and 44. The tests are otherwise equivalent.

Amendments Nos. 10, 16 and 26 all relate to the territorial extent of the schedule, as discussed in connection with Amendment No. 7. The Government's intention is to exclude from Schedule 1 workers on ships from Northern Ireland, since it is for Northern Ireland legislation to deal with them. The existing wording was technically incorrect because under the Merchant Shipping Act 1995 ships are no longer registered "at a port" but in a central register. These amendments remedy the defect.

Amendments Nos. 12, 14, 21, 22 and 23 all remove references to agreements. This is a consequence of the new Part II, which excludes voluntary agreements from the scope of the schedule. Amendments Nos. 13 and 15 ensure that if recognition ceases for some workers in a bargaining unit but not for others as a result of an application under Part III, then the workers retaining recognition cannot have that recognition overwritten by an application under Part I.

Amendment No. 18 inserts a missed cross-reference in the new Part II. Amendment No. 19 corrects a cross-reference. Amendment No. 24 is consequential to the new paragraph 91 and ensures that the correct definition of collective bargaining applies. Finally, an incorrect cross-reference is removed by Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 10:

Page 22, line 21, leave out from ("registered") to end of line 23 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall he treated as ordinarily working in Great Britain unless—

  1. (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

On Question, amendment agreed to.

Baroness Miller of Hendon moved Amendment No. 11:

Page 31, line 5, at end insert ("if it is part of a business employing more than 50 workers in total, or at least 50 per cent of the workers if there are more than 20 but less than 51 workers employed by the said business on either of the dates referred to in paragraph 7(1) of this Schedule").

The noble Baroness said: My Lords, the Employment Relations Bill is mostly about the compulsory unionisation of businesses where at least 40 per cent of the workforce take part in a vote and the majority of those who actually do vote want it.

Noble Lords will know that I have enormous concern for the welfare of small businesses. Many noble Lords will also know that my concern might be described as a passionate one. I believe that nurturing small businesses is nurturing the very engine that drives the economy, which will provide jobs and prosperity in the future.

Under the Bill, the first threshold that triggers this union activity—or potential union activity—in any business is that it should employ more than 20 people. Last Thursday I proposed an amendment to the Bill to alter the definition of a "small business" from one employing fewer than 21 people to one employing up to 50 people.

I originally believed that the Government's figure was something they had plucked out of the air, but it is now clear that that figure was probably worked out with the unions. As if this trivial figure of 21 is not bad enough, paragraph 6(b) of the first schedule gives the Secretary of State power to vary it. When I challenged the Government at the Committee stage on the interpretation of that paragraph, the noble Lord, Lord McIntosh of Haringey, admitted: We acknowledge that it may have to vary in either direction. It could he too stringent or not stringent enough".—[Official Report, 7/6/99; col. 1174.]

So it is clear that no trifle will be too small for them to snap up when they get round to it, which will be after gobbling up the bigger fish.

I do not want to take up your Lordships' time by repeating the arguments I raised at the Report stage, but I should like to remind the House that the Government have used the criterion of 50 to define a small firm in the Late Payment of Debts (Interest) Act.

More importantly, as I have previously reminded your Lordships, the European Commission, complaining about a proliferation of definitions, said in a report issued as long ago as 1996 that: In a single market without internal frontiers, the treatment of enterprises must he based on a common set of rules".

It goes on to say: The number of employees is one of the most important (criteria) and must he regarded as imperative".

I stress "imperative".

After that preamble the report states in Article 1, paragraph 2: A 'small enterprise' is defined as an enterprise which has fewer than 50 employees".

That imperative and that definition, prescribed by the European Commission, are what the Government are ignoring and totally disregarding with the derisory threshold of fewer than 21 employees that they have adamantly adhered to throughout the passage of the Bill; a threshold which they have taken power to reduce still further, even to the point of almost total invisibility, by statutory instrument.

My very reasonable and entirely proper resolution was lost last Thursday when the Government opposed it with the assistance of their junior partners, the Liberal Democrats. This surprised me—and saddened me greatly—because the Liberal Democrats claim to be great supporters of small businesses; they claim to be the true Europhiles. If "true blue" is the wrong expression, perhaps "rose-coloured glasses Europhiles" is a better description—the party that would drop us into the single currency this very day if they only had the chance.

What happened last Thursday? Not only did they not support my amendment, they did not even abstain, which I think I could have understood. On the contrary, they had a very strong Whip and, if my researches are correct, they secured one of the largest turn-outs they have had this Session. I suppose I should feel flattered.

Imposing trade unions on genuinely small businesses will not be in the least helpful to those small businesses. Noble Lords opposite and their Liberal Democrat colleagues may disagree, but show me the union which says that its objective is to help the employer earn more money or where the needs of the business are at the top of its agenda.

As I said, paragraph 29(3) of Schedule 1 invokes the union recognition procedure if a majority of the workers voting vote in favour of union recognition. However, there is a further qualification; that is, that at least 40 per cent of the workers in what the Bill calls "the bargaining unit" must actually participate in the vote. As usual, the needs of big business have been given precedence over small businesses. That is very dangerous for small businesses, which have hardly been considered at all, especially in the case of union recognition, where they have been totally ignored.

My amendment applies to a small business of the size generally recognised as such and prescribed by the EC, of no more than 50 workers. In those cases, instead of 40 per cent of the workers being the quorum to validate a vote, the amendment requires 50 per cent to do so. Let me stress that: in a business with more than 20 but fewer than 51 workers, 50 per cent of the workers will need to take part in the vote.

Before the Government argue that this will somehow wreck the Bill, let me point out the mathematical consequences. In the case of the Government's artificial figure of 21 workers, it would take 11 voters at the 50 per cent level to trigger recognition, instead of nine at the 40 per cent level; only two more people. If we go all the way up to the limit of my amendment—50 workers—then instead of 20 workers being necessary it would take 25; again, a mere handful. Certainly the difference will not bring the whole structure of union recognition crashing to the ground.

My original amendment undoubtedly offered the simplest way of resolving this problem for small businesses—a problem recognised by the noble Lord, Lord McIntosh, when he said: We accept that to apply the statutory provisions to firms with 20 or fewer workers could be onerous and inappropriate".—[Official Report, 8/7/99; col. 1045.]

One thing is certain: for 50 or fewer workers to be deemed to constitute "a small firm" is beyond argument; it is not onerous; it is wholly appropriate and absolutely fair. It is consistent with European law and practice. It is certainly consistent with the rules under which our European competitors will be working. Noble Lords can be certain that the French and the German Governments do not spend a single moment trying to make things harder for their businesses and easier for ours.

At the previous stage of the Bill the Government, aided and abetted by the Liberal Democrats, decided to make things harder than they need be for our small businesses in order to promote the interests of the trade unions. This is a small amendment which seeks, in an equally small way, to redress the balance ever so slightly. I beg to move.

Lord Murray of Epping Forest

My Lords, the fatal flaw in the amendment—as, indeed, in the speech of the noble Baroness—is that she predicated her argument by stating that the Bill is about compulsory unionisation of business and imposing trade unions on small businesses. It is nothing of the sort. The Bill is not doing a favour to employees. On the contrary, it is doing a favour to employers. What the Bill says is that, as an alternative to people stopping work and walking away—to telling an employer that they will not work unless the employer recognises the union—a legal procedure will be set up. If workers say to an employer, politely and courteously, "It is a basic human right to join a trade union. Will you accept that and recognise the union that represents us?", and if he says no, this provision means that workers do not have to say, "We shall not work for you unless you do recognise that right". The Bill enables them, together, to take an alternative line.

The purpose of the Bill is to make things easier for the employer, not to make them more difficult. It seeks to sustain a situation in which ordinary working men and women can maintain their basic human freedoms. That is all.

Lord Razzall

My Lords, I did not wish to intervene on this point, but in view of the noble Baroness's remarks, perhaps I should make matters clear. The reason we have not supported her amendment and have supported the Government to date is that we take the view that Schedule 1 is the product of the very delicate negotiations that the Government have conducted with all interested parties, and that for us to attempt to interfere on numerical grounds, as she suggests, would be inappropriate. In the light of her remarks, I might have been minded, if she pushes the matter to a vote, to suggest to my colleagues that they might wish to abstain. But in the light of the outrageous suggestions that she made in her speech about the Liberal Democrats, I shall of course recommend to my colleagues that they support the Government.

Lord McIntosh of Haringey

My Lords, when we debated the issue of small businesses in Committee and on Report, the noble Baroness, Lady Miller, and I had one point of agreement and one point of disagreement, and both seemed clear. We both agreed on the importance of small businesses. Given our background, it would be astonishing if we had not. The point of disagreement was that we did not believe that there was any justification for increasing the definition from 21 to 50. As we argued on Report, to the satisfaction of the House, there is indeed a difference as regards businesses of 20 people and under, but for very many purposes, in a large number of industries, businesses with 21 to 50 employees are capable of the same organisational issues that affect larger businesses, and the workers in them are entitled to the right to union representation. I entirely agree with my noble friend Lord Murray that the phrase "compulsory unionisation" is inappropriate to this Bill.

But now the noble Baroness has come up with another amendment which is so different from what has gone before that I scarcely believe that she believes in it. If she believed in it, surely she would have brought it forward at an earlier stage. The noble Baroness is now suggesting that the formula for the ballot majority required for recognition, which has been arrived at after long consultation and reflection, and which has never been challenged before at any stage in the progress of the Bill, either in this House or in another place, should now be altered because she feels the need, under the rules of the House, for what I believe Fowler called "elegant variation". I am sorry. That really will not do.

I know that some of my noble friends and some people in the trade unions thought that a simple majority of those voting was a sufficient test, and they drew comparisons with political elections. The Government disagreed. We felt that it would be wrong for recognition to be gained without a strong, positive show of support. If recognition were won in a ballot with a very low turn-out there could be lingering doubts about the validity of the result, and that could be bad for industrial relations.

That is why we proposed the dual test of a majority of those voting and at least 40 per cent of those eligible to vote. That ensures that there will be no recognition awarded unless there is substantial positive support, demonstrated by votes in favour.

In all the discussions on the Bill, it has been widely agreed that that is a fair and reasonable measure of support. I can see no reason to modify the proposal now, at the last stage, in the case of firms with between 21 and 50 employees. The test ensures that recognition will not be granted without both majority support and active support. That is true in smaller and larger firms.

There is no logical justification for the changed test proposed by the noble Baroness. Yes, of course we have taken a power to vary the ballot threshold if, against our expectation, it does not work; but that does not have the sinister implications attributed to it by the noble Baroness. Unless and until experience proves us wrong, we stick by our proposal. We believe that it is balanced and workable. I urge the noble Baroness to withdraw the amendment.

Baroness Miller of Hendon

My Lords, I have listened carefully to the noble Lord's response. However, he will not be surprised that I wish to test the opinion of the House.

5.5 p.m.

On Question, Whether the said amendment (No. 11) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 137.

Division No. 2
CONTENTS
Alexander of Tunis, E. Crickhowell, L.
Anelay of St. Johns, B. Dacre of Glanton, L.
Annaly, L. Davidson, V.
Archer of Weston-Super-Mare, L. Denham, L.
Astor, V. Dilhorne, V.
Astor of Hever, L. Dixon-Smith, L.
Belhaven and Stenton, L. Donegall, M.
Berners, B. Downshire, M.
Blatch, B. Eden of Winton, L.
Blyth, L. Ellenborough, L.
Bowness, L. Elles, B.
Brabazon of Tara, L. Elton, L.
Brougham and Vaux, L. Erroll, E.
Burnham, L. [Teller.] Forsyth of Drumlean, L.
Buscombe, B. Gainford, L.
Byford, B. Geddes, L.
Caithness, E. Gisborough, L.
Campbell of Alloway, L. Glenarthur, L.
Campbell of Croy, L. Glentoran, L.
Carnegy of Lour, B. Greenway, L.
Chalker of Wallasey, B. Harding of Petherton, L.
Charteris of Amisfield, L. Harlech, L.
Clark of Kempston, L. Harrowby, E.
Coleraine, L. Hayhoe, L.
Cope of Berkeley, L. Henley, L. [Teller.]
Courtown, E. HolmPatrick, L.
Cranborne, V. Home, E.
Hurd of Westwell, L. Perry of Southwark, B.
Hylton-Foster, B. Pilkington of Oxenford, L.
Knutsford, V. Platt of Writtle, B.
Lauderdale, E. Plumb, L.
Leigh, L. Plummer of St. Marylebone, L.
Lindsey and Abingdon, E. Rawlings, B.
Long, V. Reay, L.
Luke, L. Renton of Mount Harry, L.
McColl of Dulwich, L. Rotherwick, L.
Mackay of Ardbrecknish, L. Rowallan, L.
Marlesford, L. Seccombe, B.
Massereene and Ferrard, V. Shaw of Northstead, L.
Mayhew of Twysden, L. Soulsby of Swaffham Prior, L.
Mersey, V. Stewartby, L.
Miller of Hendon, B. Strathcarron, L.
Monk Bretton, L. Strathclyde, L.
Monson, L. Sudeley, L.
Mountevans, L. Teviot, L.
Munster, E. Thomas of Gwydir, L.
Newton of Braintree, L. Trefgarne, L.
Northbrook, L. Trenchard, V.
Northesk, E. Trumpington, B.
Norton of Louth, L. Waddington, L.
O'Cathain, B. Wade of Chorlton, L.
Oppenheim-Barnes, B. Westbury, L.
Park of Monmouth, B. Wynford, L.
Pender, L. Young, B.
NOT-CONTENTS
Acton, L. Gordon of Strathblane, L.
Ahmed, L. Goudie, B.
Allenby of Megiddo, V. Gould of Potternewton, B.
Amos, B. Graham of Edmonton, L.
Archer of Sandwell, L. Grenfell, L.
Ashley of Stoke, L. Grey, E.
Bach, L. Hacking, L.
Barnett, L. Hamwee, B.
Beaumont of Whitley, L. Hanworth, V.
Berkeley, L. Hardie, L.
Blackstone, B. Hardy of Wath, L.
Borrie, L. Harris of Greenwich, L.
Bragg, L. Harris of Haringey, L.
Brooke of Alverthorpe, L. Haskel, L.
Bruce of Donington, L. Hilton of Eggardon, B.
Burlison, L. Hollis of Heigham, B.
Calverley, L. Howie of Troon, L.
Carlisle, E. Hoyle, L.
Carter, L. [Teller.] Hughes, L.
Castle of Blackburn, B. Hughes of Woodside, L.
Christopher, L. Hunt of Kings Heath, L.
Clarke of Hampstead, L. Irvine of Lairg, L. (Lord Chancellor)
Clement-Jones, L.
Clinton-Davis, L. Janner of Braunstone, L.
Cocks of Hartcliffe, L. Jenkins of Putney, L.
Crawley, B. Judd, L.
David, B. Kennedy of The Shaws, B.
Davies of Coity, L. Linklater of Butterstone, B.
Davies of Oldham, L. Lockwood, B.
Dean of Thornton-le-Fylde, B. Lovell-Davis, L.
Desai, L. McIntosh of Haringey, L.
Dholakia, L. Mackenzie of Framwellgate, L.
Diamond, L. McNair, L.
Dixon, L. McNally, L.
Donoughue, L. Mallalieu, B.
Dormand of Easington, L. Miller of Chilthorne Domer, B.
Dubs, L. Milner of Leeds, L.
Evans of Parkside, L. Mishcon, L.
Evans of Watford, L. Molloy, L.
Falconer of Thoroton, L. Monkswell, L.
Falkland, V. Montague of Oxford, L.
Farrington of Ribbleton, B. Morris of Castle Morris, L.
Fitt, L. Morris of Manchester, L.
Geraint, L. Murray of Epping Forest, L.
Gilbert, L. Newby, L.
Gladwin of Clee, L. Paul, L.
Peston, L. Simon, V.
Phillips of Sudbury, L. Simon of Highbury, L.
Pitkeathley, B. Smith of Clifton, L.
Ponsonby of Shulbrede, L. Smith of Gilmorehill, B.
Puttnam, L. Stone of Blackheath, L.
Ramsay of Cartvale, B. Strabolgi, L.
Randall of St. Budeaux, L. Symons of Vernham Dean, B.
Razzall, L. Taverne, L.
Redesdale, L. Taylor of Blackburn, L.
Rendell of Babergh, B. Thomas of Swynnerton, L.
Richard, L. Thomas of Walliswood, B.
Rochester, L. Thomson of Monifieth, L.
Rodgers of Quany Bank, L. Thornton, B.
Rogers of Riverside, L. Thurso, V.
Russell, E. Tomlinson, L.
Russell-Johnston, L. Turner of Camden, B.
Sainsbury of Turville, L. Walker of Doncaster, L.
Sandberg, L. Watson of Invergowrie, L.
Sawyer, L. Whitty, L.
Serota, B. Williams of Crosby, B.
Sewel, L. Williams of Elvel, L.
Sharp of Guildford, B. Williams of Mostyn, L.
Shepherd, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.16 p.m.

Lord McIntosh of Haringey moved Amendments Nos. 12 to 26:

Page 32, line 36, leave out ("An agreement for or") and insert ("A")

Page 32, line 38, after ("effect") insert ("to the extent specified in paragraph 83(2)")

Page 35, line 22, leave out ("An agreement for or") and insert ("A")

Page 35, line 24, after ("effect") insert ("to the extent specified in paragraph 83(2)")

Page 40, line 18, leave out from ("registered") to end of line 20 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless?—

  1. (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

Page 40, line 24, leave out ("(2)(a)") and insert ("(2)")

Page 40, line 40, at end insert ("or 59")

Page 40, line 42, leave out ("58") and insert ("60")

Page 49, line 4, leave out ("or 47")

Page 49, line 48, leave out ("or agreement")

Page 50, line 48, leave out ("or agreement")

Page 51, line 36, leave out ("or agreement")

Page 53, line 49, at end insert?— ("(4A) In relation to a residual unit in relation to which a declaration is issued under paragraph 91, references to collective bargaining are to negotiations relating to the matters which were the subject of collective bargaining in relation to the corresponding parent unit.")

Page 54, line 1, leave out ("67(5)(b)")

Page 55, line 28, leave out from ("registered") to end of line 30 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless?—

  1. (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 12 to 26 which I beg to move en bloc.

On Question, amendments agreed to.

Schedule 3 [Ballots and notices]:

Lord McIntosh of Haringey moved Amendment No. 27:

Page 78, line 41, at end insert?—

("Separate workplace ballots

The following shall be substituted for section 228 (separate workplace ballots)—

"Separate workplace ballots.

228.—(1) Subject to subsection (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace.

(2) This section does not apply if the union reasonably believes that all those members have the same workplace.

(3) Subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who—

  1. (a) are entitled to vote by virtue of section 227, and
  2. (b) have that workplace.

(4) In this section and section 228A "workplace" in relation to a person who is employed means—

  1. (a) if the person works at or from a single set of premises, those premises, and
  2. (b) in any other case, the premises with which the person's employment has the closest connection.

Separate workplaces: single and aggregate ballots.

228A.—(1) Where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of subsections (2) to (4) is satisfied in relation to it.

(2) This subsection is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union who is affected by the dispute.

(3) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who—

  1. (a) according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation. And
  2. (b) are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

(4) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

(5) For the purposes of subsection (2) the following are members of the union affected by a dispute—

  1. (a) if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in 575 subsection (1)(a), (b) or (c) of section 244 (meaning of "trade dispute"), members whom the decision directly affects,
  2. (b) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(d) of that section, members whom the matter directly affects,
  3. (c) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(e) of that section, persons whose membership or non-membership is in dispute,
  4. (d) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(f) of that section, officials of the union who have used or would use the facilities concerned in the dispute." ").

The noble Lord said: My Lords, I gave notice at Report stage that the Government planned to table this amendment concerning the holding of an industrial action ballot across two or more workplaces. The amendment was tabled yesterday, and for that I apologise. As I said at Report stage, the current law in this area is notoriously complicated—indeed, incomprehensible—and we wished to be sure that our proposals were correct in all respects. We did not achieve that state of certainty in time to table the amendment earlier. In view of that and the fact that the amendment is quite lengthy, I must describe its effect in some detail to ensure that its meaning is clear.

Section 228 of the Trade Union and Labour Relations (Consolidation) Act 1992 places restrictions on the circumstances in which a single aggregate ballot may be held of members having separate workplaces. There have been a number of problems with the law. First and foremost, it is notoriously complex and difficult to apply in practice. It depends on the identification of a "common distinguishing factor" which applies to the members balloted and to no other members. Experienced employment lawyers have found the formula virtually unintelligible and very difficult to apply to actual cases. Therefore, it presents problems to both unions and employers. The law cries out for some clearer formulation of words to specify the circumstances in which an aggregate ballot can be held. The new Section 228A introduced by this amendment provides this clarification.

Before I describe the new provision in detail I should like to describe another problem with the current Section 228 which this amendment tackles. I refer here to the definition in the section of "place of work", requiring premises to be "occupied" by the employer for it to qualify. This has created difficulties in the past, most recently in the case of Intercity West Coast Limited v. RMT where it was almost impossible for the union to know whether or not particular adjacent premises occupied by different employers with whom the union was in dispute should be regarded as being separate. The amendment provides, in subsection (4) of the new Section 228 to be inserted into the 1992 Act, a simpler form of words to define a workplace. This removes all reference to the need for the premises to be occupied by the employer, and it responds to criticisms of the existing law.

New Section 228 states that a union must undertake separate workplace ballots for each workplace unless specific circumstances obtain. The three sets of circumstances are set out in the new Section 228A. First, subsections (2) and (5) of new Section 228A allow the union to aggregate a ballot across separate workplaces if at least one of its members at each of the workplaces is directly affected by the dispute. So, if a dispute concerned Sunday working, and such working occurred at workplaces A and B, but not workplace C, the union could hold an aggregate ballot across workplaces A and B, but it would have to hold a separate ballot at workplace C.

These provisions mean that a union can aggregate a ballot at those workplaces which are indisputably "close" to the issue at dispute. It seems eminently reasonable, where the same circumstances apply, to allow for the balloting across the workplaces to be aggregated. This should simplify the process for all concerned: union members, the union and the employer. Where one or more workers are directly involved, it will normally be the case that others at the same workplace, sometimes many others, will rightly feel themselves to be indirectly involved by an employers' handling of an issue; for example, the way the employer handles a matter may set a precedent for the handling of similar matters in relation to other workers.

Obviously, this formulation does not allow aggregation to occur where a workplace has nobody directly affected by a dispute, but where many or all are indirectly affected. This circumstance should be relatively rare, however. As I have explained, the union would have to hold a separate ballot of members at that workplace if it wished those members to take part in the industrial action.

The second circumstance where aggregation is permitted is where the union ballots each and every one of its members in a particular occupational category who are employed by a particular employer or group of employers.

Thirdly, aggregation is permitted where the union ballots each and every one of its members employed by a particular employer or employers. These two types of all-inclusive or omnibus ballots are in fact permitted under the existing Section 228. What we have done, therefore, in subsections (3) and (4) is to spell this out, thereby removing any possible uncertainty about the matter.

The current law is opaque and highly restrictive in its effects. It is based on the false premise that the holding of a single aggregate ballot across different workplaces provides great scope for abuse to occur. In fact, there is little or no evidence that unions have abused the balloting process to force their members at moderate workplaces to take action by aggregating their votes with those from a larger, militant workplace. Such tactics would anyway backfire. Democracy has spread within unions. Unwilling workers will simply not obey a call by their union to take action if the dispute does not affect them at all. Also, such tactics would adversely affect the size of any ballot majority. Unions are most interested in achieving large majorities on large turn-outs. They know that such outcomes have a greater impact in persuading the employer to reach a settlement.

Our proposals provide clearer criteria to define the circumstances where an aggregate ballot can be held. They are also less burdensome and restrictive. However, they retain legitimate limitations on the ability of unions to hold such ballots so that members at a particular workplace cannot be balloted with those at other workplaces where their workplace has no real connection with the dispute except in the case where all the members employed by their employer are balloted. The Government have thought long and hard about this amendment and believe that they have found the right balance. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 28:

Page 79, line 18, after ("and") insert ("to")

The noble Lord said: My Lords, on Report an amendment was introduced to Schedule 3 to widen the scope for merchant seamen to be balloted on industrial action aboard ship or at a port. The provisions currently state that it will be inconvenient for the merchant seamen to receive a voting paper and to vote while on the ship or at a place where the ship is. This is less than satisfactory grammatically! Receiving a voting paper and actually voting are separate matters. It should therefore be clear that the convenience test applies separately to each of them. By inserting the word "to" before the word "vote", this amendment achieves that result. I beg to move.

On Question, amendment agreed to.

Schedule 4 [Leave for Family Reasons Etc.]:

Lord Simon of Highbury moved Amendment No. 29:

Page 86, line 39, leave out ("unless") and insert ("except where")

The noble Lord said: My Lords, in moving Amendment No. 29, I should like to speak at the same time to Amendments Nos. 30 to 42. These amendments are all minor consequential matters, made necessary by the changes introduced on Report to the provisions of parental leave and time off for dependants and the introduction of new Schedule 8 relating to national security. I beg to move

On Question, amendment agreed to.

Lord Simon of Highbury moved Amendments Nos. 30 to 42:

Page 87, line 18, leave out ("failure") and insert ("refusal")

Page 87, line 29, leave out ("failing") and insert ("refusing")

Page 88, leave out lines 11 to 16 and insert? ("4. In section 13(2) of the Employment Tribunals Act 1996 (costs and expenses) the following shall cease to have effect—")

Page 88, line 43, leave out ("or time off under section 57A")

Page 89, line 38, leave out ("or time off under section 57A")

Page 90, line 18, leave out ("57C") and insert ("57B")

Page 90, line 19, leave out paragraph 34

Page 90, line 27, leave out ("57C") and insert ("57B")

Page 90, line 32, leave out ("57C") and insert ("57B")

Page 90, line 37, leave out ("57C") and insert ("57B")

Page 91, line 1, leave out paragraph 40

Page 91, line 24, leave out ("57A, 57C,")

Page 91, line 24, leave out ("81,")

On Question, amendments agreed to.

Schedule 7 [Employment Agencies]:

Lord Simon of Highbury moved Amendment No. 43:

Page 105, line 31, leave out ("The reference in subsection (1)(eb)") and insert ("A reference in subsection (1)(ea) to (ec)")

The noble Lord said: My Lords, this is an amendment to Schedule 7, a technical amendment which amends the Employment Agencies Act 1973. It makes it clear that the application of new Section 5(1A) is not confined to regulations made under new subsection 5(1)(eb). Section 5(1A) makes it clear that regulations under the Act can apply in relation to services provided by bureaux to people seeking work outside the United Kingdom and to non-UK residents seeking work inside the United Kingdom. I beg to move.

On Question, amendment agreed to.

Schedule 8 [National Security]:

Lord Razzall moved Amendment No. 44:

Page 109, line 16, leave out ("all or")

The noble Lord said: My Lords, perhaps with the leave of the House, I may speak to Amendment No. 45 at the same time. I am sorry to have brought this amendment before the House at this late stage rather than on Report although, as I think the noble Minister will accept, this particular amendment to the Bill was brought in by the Government at a relatively late stage. The government amendment comes directly as a result of the report of the Intelligence and Security Committee of 1997–98 which recommended that the procedure should be altered in matters affecting national security so as to give rights to employees which hitherto they have not had. That is the purpose of the Bill.

My two amendments go to the point that if the substance and purport of the amendments being made by the Government are to give to members of the security services in particular the right to appear before the appropriate tribunal and the right to be represented there, it would seem to destroy the purport of the Bill if the words "all or" remain. In fact, it would enable the purpose of the provisions to be completely negated. It would mean that the relevant individual or their representative could be excluded from all the proceedings. As I understood it, one of the major purposes of that section is to allow that representation to take place either individually or by representation.

Of course, it is accepted that in matters of national security it may be appropriate for the individual or the individual's representative to be excluded from significant elements of the proceedings. It cannot be right to have on the face of the Bill the power to exclude either the individual or their representative from all the proceedings, as that was indeed the whole purpose of the clause.

I suspect—no doubt the Minister will deny this if it is wrong—that the clause is drafted in this way because it has been lifted wholesale from the provisions of the special immigration appeals tribunals. Those provisions are identical with these, with the word "all" included. There is a difference between the procedures for the special immigration appeals tribunals and these tribunals. In the former case, there is a provision for a special advocate, who is an amicus curiae, to be appointed by the tribunal to be present when the applicant and his representative are excluded. Therefore, if we are going to have that wording, it would be inappropriate to take the wording specifically from that provision and to lift it wholesale into this. I am sorry to be raising this matter at such a late stage. The words that are being deleted are very timely and this touches on an important point of principle. I beg to move.

5.30 p.m.

Lord Archer of Sandwell

My Lords, I have not participated in your Lordships' earlier debates on this Bill. Those who know me will know that this does not reflect any absence of interest in the subject matter. It really reflects two points. The first is the number of matters that crowd upon our attention, particularly in the weeks immediately preceding the Summer Recess—at least I hope these are the weeks immediately preceding the Summer Recess! It also reflects the fact that I strongly support the Bill. I was not going to delay your Lordships by saying that I support it. If I have nothing about which to complain I tend to remain silent. But this amendment is different. I am most grateful to the noble Lord, Lord Razzall, for his alertness in setting it down.

As the noble Lord said, in the annual report for 1997–98 the Intelligence and Security Committee, on which I am privileged to serve, addressed the question of personnel problems within the security services. Someone who leaves the service with a sense of grievance has the capability of disclosing information which could be very damaging; or of disclosing misinformation which could be equally damaging.

Over the past few years, the agencies have revised their personnel management policies to bring them into line with best practice. But we concluded that one factor in generating frustration is the absence of a procedure for complaint. We said that everything possible should be done to ensure that employees of the agencies should have the same rights as employees elsewhere, including access to what are now employment tribunals. Of course, as the noble Lord said, from the nature of their employment there will be matters which cannot be public, for security reasons, and the procedures will need to be adapted accordingly.

I accept that the Government are seeking to address that problem. If I may say so on behalf of the committee, although I have no mandate to say it, I am grateful. My noble friend Lord Sainsbury was kind enough to write to me telling me what was proposed.

The present position arises from Section 193 of the Employment Rights Act 1996. That Act permitted Crown employees to complain to employment tribunals. But Section 193 provided that that right could be denied them by the certificate of a Minister certifying that their employment was required to be exempted from protection for the purposes of safeguarding national security. So it was therefore open to a Minister in the Government which employed them to deny them access to tribunals.

The amendment moved by my noble friend on Report substituted for Section 193 a new schedule which is now Schedule 8. It does not deny employees of the security and intelligence services access to an employment tribunal. It is a commendable new schedule. But it provides that it is a complete defence to show that the action complained of, which might include dismissal, was taken for the purpose of safeguarding national security. It is not even necessary to show that it had that effect. It is enough that it was taken for that purpose. It need not have been a reasonable course to take for that purpose. If that was the purpose, that is conclusive, as I understand it. So already the employee may have a formidable task in showing that what was done to him was not done for that purpose.

However, it is the procedure which is occasioning the greatest consternation. A Minister may direct the tribunal to do a number of things, such as to sit in private. I find it curious that the tribunal has no discretion in the matter. The decision of the Minister is conclusive. The Minister may be a party to the proceedings. So we may have a party being, in effect, judge in his own cause.

There is a power to make special provision as to the composition of the tribunal. If I understood my noble friend correctly on Report, he said that it was intended that the tribunal shall consist of specially selected experienced chairmen and specially designated lay members. Therefore, it is curious that the Government do not propose to trust them with these decisions.

We then find the provision to which the noble Lord's amendment is directed. One of the matters on which the Minister may direct the tribunal is to exclude the applicant and his representative from all or part of the proceedings. I understand that certain evidence should not be made known to an applicant and his representative; and it may be necessary to exclude them from certain parts of the proceedings. But to exclude them from the whole would prevent them from even stating their case. They could not even argue what conclusions should be drawn from some of the evidence. Certainly it is in danger of being held to infringe Article 6 of the European Convention on Human Rights, and it would reduce the hearing to a travesty. I should be unwilling to take the chair at a tribunal with that provision in its constitution.

On Report, my noble friend indicated that it is the Government's intention that the Attorney-General may provide a special advocate to act in the interests of the applicant in the way that, as the noble Lord, Lord Razzall, indicated, the immigration tribunal now works. But if he is to be denied a representative of his choice, is the special advocate to be appointed irrespective of the applicant's wishes? Let us suppose that he says he does not want the special advocate. Clearly the special advocate is not in any meaningful sense representing the applicant. Will he have to take instructions from the applicant? Will he have to take into account the wishes of the applicant if he says how he would like a particular aspect of the case dealt with? I am unhappy about the provision on the immigration side.

But if the procedure is manifestly not fair, not only will that reflect on our legal system and our standards of human rights compliance; it will fail to address the problem which the Intelligence and Security Committee had in mind: that of dissatisfied former employees of the security services working out their frustrations in public to the damage of the national interest. It is worth a little care to get the provision right. I support the noble Lord's amendment.

Baroness Miller of Hendon

My Lords, I am sure that the House is grateful, as I am, to the noble and learned Lord, Lord Archer of Sandwell, for explaining so carefully the technical matters and the defects within the clause. My right honourable friend, the Member for Bridgwater, who chairs the committee on which the noble and learned Lord sits, was equally concerned about the matter. We on these Benches support the amendments.

Lord Sainsbury of Turville

My Lords, I deal with two general points. First, as my noble and learned friend said, there is a power for the Attorney-General to appoint a special representative to represent the interests of an excluded applicant. I think that it is difficult to conceive how that person would then take instructions from someone who was not able to be present at the meeting. It is therefore a proper power and the right one in this case.

The second is the question of dismissal on the ground of national security. Again, it seems to me that this has to be determined by the Minister. In those circumstances, it cannot be debated in the way one might like.

Government policy is designed to allow staff of the security and intelligence agencies to present complaints to employment tribunals in as similar a way as possible to other employees, while safeguarding the interests of national security.

One of the necessary safeguards provided is that a Minister of the Crown may direct in Crown employment proceedings that an applicant should be excluded where necessary from part or all of proceedings in the interests of national security. The applicant's representative may also be excluded in the same way.

The power to make such a direction will be used only where necessary to protect the interests of national security, and it is anticipated that the power to exclude from all future proceedings would be very rarely used and only in the most extreme circumstances where the interests of national security could not otherwise be adequately protected. Again, I think that this has to be an area where the judgment has to come from the Minister. However, it is government policy that an applicant—or his representative on his behalf—should always, in all circumstances, be entitled to make a statement of his case to the tribunal.

We are presently examining the Bill to see what needs to be done to ensure that the procedure regulations can provide for this. Any deficiency in this regard in this provision of the Bill, which is itself an amendment of this House, may be dealt with in another place when it comes to consider this new schedule. We are also not convinced that this amendment would achieve this aspect of government policy. I therefore ask that the amendment be withdrawn.

Lord Razzall

My Lords, from the response the Minister has given, I understand that it will be government policy and they will see how they can include the matter in the regulations and, if necessary, on the face of the Bill when it goes back to another place: that at the very least anyone in these circumstances will always be able to make a statement as to their case to the relevant tribunal. The Minister nods. If that is what he indicates, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 45 not moved.]

Lord Sainsbury of Turville moved Amendment No. 46:

Page 109, line 36, leave out ("party") and insert ("applicant")

The noble Lord said: My Lords, in moving Amendment No. 46, I propose to speak also to Amendments Nos. 47 and 48. They are three minor technical amendments.

Section 10(5)(b) inserted by Schedule 8 into the Employment Tribunals Act 1996 provides that employment tribunal procedure regulations may make provision for a Minister of the Crown, on grounds of national security, to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings. Section 10(5)(c) provides that the applicant's representative may likewise be excluded. Section 10(6) provides that employment tribunals may also exclude applicants and their representatives in the interests of national security.

Section 10(7) currently provides that the Attorney General or the Advocate General will be able to appoint a special representative to represent the interests of an excluded party. Since it follows from what I said earlier that the party concerned will be the applicant, the amendment substitutes "applicant" for "party" in subsection (7).

Amendment No. 47 is a drafting amendment designed to improve and clarify new section 10B(6) of the Employment Tribunals Act. It does not alter its effect.

Amendment No. 48 is another drafting amendment which substitutes "or" for "and" in new section 30(2A) of the Employment Tribunals Act 1996. I beg to move.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendments Nos. 47 and 48:

Page 111, line 5, after first ("programme") insert ("which is")

Page 111, line 15, leave out ("and") and insert ("or"

On Question, amendments agreed to.

Lord Simon of Highbury

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Simon of Highbury.)

Baroness Miller of Hendon

My Lords, I shall be extremely brief. As noble Lords opposite know, we on these Benches certainly did not like the Bill, but we are most grateful for the courtesy of all three Ministers in handling our concerns. We are also grateful to the officials for the help they gave and for the many small concessions and improvements which have been made to the Bill.

I understand from the Brethren that the noble Lord, Lord Simon, was most kind and had a meeting with them. They understand that the Government are considering whether the regulations can contain advice relating to discrimination on religious grounds. If that is so, I am most grateful.

I know that I have made some harsh comments about trade unions and I should not like to have offended any noble Lord on the other side. Despite that, I am not against trade unions; I believed that they have a proper place in large industrial concerns. I hope that that does not sound patronising because I really believe that. However, I was able to build a small business into a large international one over three countries and I believe that the legislation will be difficult for small business and will cause many problems.

Finally, I repeat that I am grateful for all the help I have received.

Lord Simon of Highbury

My Lords, perhaps I, too, may take this opportunity to thank the noble Baroness, Lady Miller, and her colleagues and the noble Lord, Lord Razzall, for the way in which the Bill has been conducted. It has passed smoothly. It is an important piece of legislation and we on this side have appreciated the constructive manner in which it has been dealt with. I also thank the officials for all their hard work.

I confirm that we have spoken to the Brethren and I have encouraged them to write to me at the Department of Trade and Industry, particularly as regards their practical experience which may enlighten the way in which we approach the writing of the code. As we said previously, we do not believe that it is right to place that on the face of the Bill, but we shall attend to the practicalities as best we can in giving advice to ACAS on the formulation of the code. Obviously, no clear commitments can be made on that, but we shall make best endeavours.

On Question, Bill passed and returned to the Commons with amendments.