Enterprise and Regulatory Reform Bill
Debate between Lord Marland and Baroness Turner of Camden
Lord Marland
My Lords, government Amendment 21 aims to ensure that the right people are covered by the whistleblowing protections and amends the definition of “worker” in Section 43K of the Employment Rights Act 1996.
Following National Health Service reforms, certain health professionals have been inadvertently excluded from whistleblowing protections as their contractual agreements are not covered by the existing definition of “worker” in the legislation. We believe that it is important that this situation is rectified, so we are amending the definition of “worker” to cover these individuals. We are also taking a power to ensure that future amendments to the definition of “worker” can be made through secondary legislation. This will provide us with the flexibility to react promptly to ensure that the right individuals are protected.
I trust that noble Lords will support this move which remedies an inadvertent omission and ensures that health workers are properly protected. I beg to move.
Baroness Turner of Camden
My Lords, I understand from the Government’s statement and from what the Minister has said that the intention is to ensure that people who ought to be covered by the Act in future will in fact be covered. What bothers me about it, however, is Clause 4, which gives the Secretary of State the right to make amendments as to what individuals count as workers for the purpose of this part. It seems to me that that leaves the whole thing fairly wide open as far as the Government are concerned: they would be able to introduce secondary legislation to indicate that some people are workers and other people are not workers. That is a bit of a difficulty as far as we are concerned.
As far as the clause itself is concerned, it had been my intention to move that it should be opposed, mainly because the TUC’s view is that the wording as it now exists in the Bill introduces a public interest test into whistleblowing rights and, for such claims to succeed, the employee will have to demonstrate that he believed that disclosure was in the public interest and that this belief was reasonable in the circumstances. The view of the TUC was that this would limit the protection that employees have in raising concerns about health and safety issues at work. The Law Society also has doubts about this clause. For these reasons I intended to oppose the clause. However, my noble friends have further amendments which we are due to discuss and which I think will deal with some of the problems that some of us have with this clause.
Of course, I am sure that the Minister will appreciate that it is very important to ensure that workers, particularly those working in very dangerous environments, do not have any restrictions about whether or not they may raise problems they have about health and safety at work. I can remember my own union being very much involved with this many years ago when there was the awful accident at Piper Alpha in the offshore oil industry, in which a number of workers were killed. We discovered on investigation that a number of individuals working there had short-term contracts and, because they had short-term contracts, they were very reluctant to warn about the kind of issues that were of concern to them about safety and so on because they feared that they would not have their short-term contracts renewed.
There is a case for looking at the way that this clause in the present legislation works to ensure that we do cover everybody who might have the possibility of drawing attention to possible dangers in their working environment. We must be absolutely certain that they are not prevented in any way from raising those particular issues. I will not, this evening, be pressing the opposition to the whole clause, but I certainly think that we need to look at it very thoroughly before the legislation leaves us.
Lord Stevenson of Balmacara
My Lords, in the margins of the debate that we have just had the Minister very kindly passed across the original quote from the 11 May 1998 House of Lords Second Reading debate on the then Public Interest Disclosure Bill. I had to read it very quickly because I was not as well briefed as perhaps I should have been when coming to this debate. I want to make a point that I think influences the way that we might need to respond to the clause-stand-part part of the discussion that we are having today.
The interesting thing about this debate is that we are focusing on the words “the public interest”. I suggest to the Minister that it might be sensible to have a discussion about what the Government are trying to do here. Rather than in the openness of this debate, perhaps we could have a side meeting on it. The reason I am saying that is that, reading the speech of the noble Lord, Lord Borrie, one might think that if he made it up as he went along, it was extremely well written. I imagine that he read it out at the time from a brief that he had. The important thing about it—I am sure that the Minister will have been on to this immediately—is that the Minister was selective in what he quoted to us. The noble Lord, Lord Borrie, said that,
“the tribunal must be satisfied that that disclosure was reasonable, having regard, among other things, to the seriousness of the threat to the public interest, whether the danger is continuing or likely to occur again, whether the disclosure was in breach of an obligation of confidentiality owed to a third party and, where appropriate, whether use was made of any whistle-blowing procedure which the organisation had in place”.—[Official Report, 11/5/98; col. 891.]
The noble Lord then went on to make the quote to which the Minister referred.
The point that I want to underline is that the tribunal has to be satisfied that disclosure was reasonable: that is the founding principle of this part of the legislation. “Having regard to” is a secondary feature of that in relation to the seriousness of the threat to the public interest. It seems to me that this amendment substitutes the present arrangements for the reasonableness —having regard to other things—of the seriousness of the threat to the public interest, to a direct concern for “the public interest”, however we define that. It seems to me that in making that rather elegant elision we are in danger of opening a much wider range of issues that need more thought than we can possibly give it in this Committee, which is why I suggest that we have a meeting.
The Minister says that this is ongoing work—we welcome that. He says that it is important—we certainly echo that. He is also asserting, and we would agree with this, that we are singing off the same hymn sheet. So we are surely trying to get to the same place here. I do not think that there is a difference of approach: I just worry that the wording is not as you would do it.
The complexity of this issue is that, as the noble Baroness said very clearly, we all want those who should be covered to be covered by this part of the legislation, but we do not want to have the risk that those who could be covered are not covered by it. I think that that is a really important point. It is in that sense that we would ask the Minister to respond to this and, perhaps, to take up our suggestion of a side meeting.
Enterprise and Regulatory Reform Bill
Debate between Lord Marland and Baroness Turner of Camden
Lord Marland
My officials have suggested that I clarify as I was not perhaps as clear as the noble Lord wanted. They have passed me a note saying that the clock stops when the claim is received by ACAS and starts again when the certificate is received by the claimant. Is that as clear as mud?
Baroness Turner of Camden
I thank the Minister for the very sympathetic response he made to the amendment. I welcome his statement that the Government would also welcome a speedy resolution of these issues. I shall consider very carefully what he said. It seems to me that we could perhaps work towards a form of wording so that in the kind of cases that I have been particularly concerned with, a speedy resolution would be possible. That is terribly important in this kind of case, in particular. I will withdraw the amendment now, but will probably come back on Report with a different form of wording. I beg leave to withdraw the amendment.
Baroness Turner of Camden
My Lords, I originally intended to delete from the Bill any reference to this form of officer. However, I must point out that the Law Society, which has also briefed me along with the TUC and many other bodies, has already expressed some concern about this provision. It says:
“The Bill provides a new power for Legal Officers to make determinations in some (to be specified) Employment Tribunal Claims. The Society recognises the potential for Legal Officers to perform some duties, but stresses that they must be suitably qualified”.
It is clearly concerned that we will have people who are not suitably qualified making decisions on some of these highly complex potential arbitration cases. Therefore, I echo what my noble friend Lady Donaghy has said: the Government have to be rather careful about this. Given that specialist advice warning, I hope that they will look at it very carefully.
Lord Marland
Members on the Benches opposite make some very timely comments on this amendment because at the moment the Government are reviewing the response to the consultation. One of the elements of that review is rapid resolution, which involves legal officers, so we will obviously consider the points that the noble Baronesses and the noble Lord, Lord Young, have made. As I say, they are timely.
I say in response to the noble Lord, Lord Young, that decisions of a legal officer would be reviewed by a judge, so there is someone looking over their shoulder, and any decision by a legal officer could be reviewed or, indeed, reversed within the existing provisions in the employment tribunal rules. I think we have a level of comfort there but, as I said, this is a timely amendment. It is not something on which we have resolved our position. Noble Lords have identified a number of areas of concern. As we are in the middle of a consultation process, we will obviously take those into account. We will, I hope, have come to our conclusion by Report, when we can talk further and explain what is going on. On the basis of those comments, I hope that the noble Lord will withdraw his amendment.
Lord Marland
Employment judges know as much about these things as we in this Room do. They have been doing case after case. We are presupposing that judges know nothing and that they are incapable of making decisions based on the rule of law on a subject that is determined by what the law says, not by: “Oh by the way, you must understand that there are extraneous circumstances that may affect the lay person, who quite rightly is sympathetic to them”.
Ultimately, the rule of law prevails. It is the interpretation of the law that prevails, and therefore it is a judge who is qualified to interpret the law, so I do not agree that there is a huge import in having lay members. Of course, as the noble Lord, Lord Monks, who knows so much about this subject, quite rightly says, the judge has the opportunity to choose a panel, and we can get into arm-to-arm combat on whether it is two or four people. Whatever one says, you are damned, in a sense. The judge has the opportunity to have lay members if he thinks there are circumstances he does not understand or working practices with which he is not familiar. Ultimately, these people are being judged on what the law says by someone who can interpret the law, not by people who may or may not understand the law in some circumstances. I am afraid I am not persuaded in this instance—by people who have great knowledge in this subject—that it is in the interests of either party to have lay people, except on cases where the judge himself decides he needs that support.
Baroness Turner of Camden
Does the noble Lord not recall that his Government introduced a law, which we now call LASPO, which denies any kind of legal aid rights to anybody in employment cases? Individuals, unless they are represented by a union or can afford legal representation themselves, have no representation because LASPO forbids it.
Lord Marland
I note what the noble Baroness says, but I do not think that it has any relevance to this amendment. This amendment is about who is going to decide, who is going to interpret the law in this particular case. Therefore, with great respect, I hope the noble Lord, Lord Young, hears what I have to say because it is actually what people will want.
Lord Marland
My Lords, if we are to make any progress on this Bill, we have to take a more conciliatory position between ourselves. I believe that underlying all this is a conciliatory position, because ultimately we all want more jobs and more people employing others. We all feel passionately about that. We cannot always come at this from the polarised position of the TUC. Indeed, we as government are not coming at this by saying, “Beecroft says this, so we must do it”. In fact, as a department, we rejected quite a few things that Beecroft said because we did not think that they were in the interests of employees. Therefore, we are not taking a polarised position based upon part of the argument. In the end, we are all interdependent. Without the employer, we do not have employees, and without employees, we do not have a return to prosperity.
It was a pleasure to negotiate with unions in the north. Sellafield was my area of responsibility. I much admired the way in which they came to the table and to understand that they had to improve their working terms and conditions for Britain to become competitive again. It is to their eternal credit that after two rounds, three pinfalls and one submission, we got to a very amicable and successful direct contact where there was mutual respect. As an employer, the first company with which I was involved in setting up, the majority of people who worked there were shareholders. We believed that that community spirit was the best way forward.
I have already conceded on this matter and we do not really need to debate it, but we have a roaming brief on this issue. I think that all parties agree that we need to have a cap on awards but we need to make sure that we get it right and that it is fair. It should not be in favour of the employee or the employee: it should be fair and balanced. This House is good at being fair and balanced.
I am grateful for the contributions, which have been fair and balanced at times. When they have been fair and balanced, we have started to make progress. I think that in our hearts we all want the same thing. At the end of all this, we will have the same thing. It will leave this place a better Bill. It will have been challenged. It will not have been challenged by taking unreasonable, polarised positions. If we did, we would not end up with something reasonable at the end.
After all this, I hope that the noble Baroness will support this clause.
Baroness Turner of Camden
I thank the Minister for his fairly sympathetic response. I also thank noble Lords who have contributed to the debate, particularly my noble friend Lord Monks who set out what has happened over the years in relation to employment rights, which have been the fruit of the struggle of many of us over the years. Workers in their unions, and workers not always in unions, have struggled very hard to maintain rights in employment, which did not come easily to them.
Eventually, we succeeded in getting quite a lot of employment rights. My former noble friend, Lord Wedderburn of Charlton, who I am sorry is no longer with us, was very instrumental in changing the law in this country. He did it as a result of pressure from unions on behalf of the workers who, at that time and in the past 200 years, have been through most appalling conditions. Through organisation and struggle, they managed to change that and we now have a set of employment rights which many of us are now fighting to maintain.
A good employer does not dispute that workers have entitlement to rights. Usually, they are quite willing to honour those rights. It is the poor employer who does not and who wishes that they can regard their employees as disposable. We do not regard employees as disposable. We want to ensure that employment rights are suitably maintained. We shall continue with this when the legislation now before us reaches Report stage. We take on board what the Government have said but I think that we shall come back with different wording and we shall argue for it. That will not be for this evening but perhaps for another time.
Employment: Science and Technology
Debate between Lord Marland and Baroness Turner of Camden
Lord Marland
There is no doubt about it; the noble Lord is completely right. We are scratching at the surface. We will probably end up, with the current budget, with 30,000 people at the marvellous UTCs. It is a new project that the noble Lord is starting with great energy, if I may say so. It has full support from this House and, indeed, the Government.
Baroness Turner of Camden
Would it not be a good idea to revise the WISE campaign—women into science and engineering—with which the EOC had considerable success many years ago? If we could get the WISE campaign reorganised, it is quite possible that we would have some assistance from the TUC because it would certainly be interested in increasing the number of women interested in science and technology.
Lord Marland
The noble Baroness quite rightly says that there is an undersupply of women in engineering and, particularly, in manufacturing. I talk to my daughters and they all seem to want to go into fashion, which probably means that they have an alternative career. It is important that we get women into these areas, and there is no barrier to entry for women getting into them. We must encourage them, as we must in all areas.