Enterprise and Regulatory Reform Bill

John Bercow Excerpts

Wednesday 17th October 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)]

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

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 1—Removal of requirement for protected disclosures to be made in good faith—

‘The Employment Rights Act 1996 is amended as follows:

‘(1) Omit “in good faith”—

(a) in section 43C (Disclosures qualifying for protection), in subsection (1),

(b) in section 43E (Disclosure to Minister of the Crown), in paragraph (b), and

(c) in section 43F (Disclosure to prescribed person), in subsection (1)(a).

(2) Omit “makes the disclosure in good faith,

(b) he”—

(a) in section 43G (Disclosure in other cases), in subsection (1), and

(b) in section 43H (Disclosure of exceptionally serious failure), in subsection (1).’.

New clause 2—Duty on employers to prevent detriment caused by others to workers who have made protected disclosures—

‘(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employer done on the ground that worker has made the disclosure.

(2) Regulations under this section—

(a) are to be made by statutory instrument, and

(b) are not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.

Amendment 80, in clause 7, page 4, line 13, at end insert—

‘(1) Prior to the commencement of this section, the Secretary of State shall carry out an impact assessment into the effect of the introduction of proposed fees for the employment tribunal system and the impact this will have on the effectiveness of ACAS conciliation proceedings.’.

Government amendments 6 and 7.

Amendment 51, page 5, line 43, at end insert—

‘(e) preventing an employer or ex-employer of a prospective Claimant from applying for costs against the prospective Claimant under the Employment Tribunal Rules or other measures to provide an incentive to employers or ex-employers to take part in the conciliation process.’.

Amendment 52, in clause 11, page 7, line 27, after (2) insert

‘With the consent of the parties but not otherwise.’.

Amendment 53, page 7, leave out lines 29 to 38.

Amendment 54, page 8, leave out lines 1 to 10.

Amendment 81, leave out clause 12.

Government amendments 8 to 10.

Amendment 82, leave out clause 13.

Government amendments 11 to 13.

Amendment 70, in clause 13, page 9, leave out line 15.

Government amendment 14.

Amendment 71, page 9, line 32, leave out

‘in whatever way the Secretary of State thinks fit’

and insert

‘by the Secretary of State following consultation with the TUC and CBI’.

Government amendment 15.

Amendment 58, leave out clause 14.

Amendment 59, in clause 14, page 10, line 11, at end insert—

‘(c) and where the employer employs in excess of 10 employees at the time of the claim first being submitted to ACAS as per section 18A of this Act,’.

Amendment 92, page 10, line 14, at end insert—

‘(1A) The Secretary of State shall by regulations provide for an employer to pay a penalty to the Secretary of State for each period of time (as specified in those regulations) that passes during which an award of compensation under Part X of the Employment Rights Act 1996 has not yet been paid by the employer.’.

Amendment 72, page 10, line 17, leave out from ‘£5,000’ until end of line 4 on page 11.

Amendment 83, page 10, leave out lines 20 to 25.

Amendment 73, page 11, line 47, after ‘Fund’, insert

‘to be spent with the objective of promoting awareness of employment rights and promoting training for employment.’.

Amendment 94, in clause 15, page 12, line 4, leave out from ‘(protection),’ to end of line 5, and insert ‘after subsection (2), insert—

‘(2A) The disclosure of information relating to a private contractual matter to which the person making the disclosure is party is not a qualifying disclosure unless the worker making the disclosure reasonably believes it to be made in the public interest.”.’.

Government amendments 16, 17 and 31.

Amendment 57, in schedule 2, page 65, line 22, leave out ‘one month’ and insert ‘six months’.

[Jo Swinson]

New clause 8 will introduce sensible changes to the employment tribunal rules of procedure recommended by Mr Justice Underhill. I shall say more about the effect of those changes shortly. A number of other new clauses and amendments have been tabled both by the Government and by other Members, and I shall attempt to address them—as well as new clause 8—as comprehensively but as succinctly as possible. As Members will know, part 2 was subjected to thorough scrutiny by the hon. Member for Edinburgh South (Ian Murray) and his Committee colleagues, and all the clauses were accepted unamended.

Contrary to some of the views expressed in Committee, these measures do nothing to affect an individual’s employment rights. Instead, they deliver on the Government’s commitment to giving businesses more confidence to take on new staff and grow. We know that employment tribunals are a continuing cause of concern for businesses and, indeed, employees, and I should be surprised if Opposition Front-Benchers tried to argue that all is working swimmingly at present. The measures in part 2 are designed to alleviate the fears and problems by encouraging the earliest possible resolution of disputes, facilitating settlement agreements to help businesses to manage their staff more effectively, and ensuring that the tribunal system itself operates efficiently for all users.

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[Julian Smith]

We are hearing a load of bluster and rubbish from Opposition Members. This is a balanced measure that puts a bit more power in the hands of those who will create new jobs in this country. The shadow Minister was an employment lawyer; every member of the Opposition Front-Bench team was a business owner. They are being hypocrites about the clause.

[Mr Speaker]

Order. The hon. Gentleman must withdraw his use of the word “hypocrites” in relation to Members of the House. Perhaps he will be good enough to withdraw the remark and apologise.

[Julian Smith]

I do withdraw it and apologise, Mr Speaker.

[Mr Speaker]

Thank you. I am grateful.

[Jo Swinson]

Thank you, Mr Speaker. I think it is fair of my hon. Friend the Member for Skipton and Ripon (Julian Smith) to point out that many business owners are genuinely concerned about how employment law currently works.

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[Jo Swinson]

I think that it will do what the Government intend it to do—basically what it says on the tin. It is about making sure that the public interest disclosure regime has to have a public interest test. That is what was meant when the legislation was initially framed and formed. The case law that has come up since then has showed that there was a loophole, and I think, to be fair, that the Opposition have accepted that it needs to be closed.

Following my discussions with the hon. Member for North Ayrshire and Arran, the House may wish to be aware of the steps that the Government are taking in the NHS to encourage whistleblowers. As I said during the recent debate on the issue, the Government fully support the rights of NHS staff to raise concerns in the public interest. That right has been enshrined in the NHS constitution and further strengthened through changes made to the constitution and the handbook in March this year. The Department of Health is continuing to build on the rights set out in the Public Interest Disclosure Act 1998 further to highlight the statutory protections available for those who raise concerns. I want to stress that the Government fully support genuine whistleblowers and want to encourage individuals to bring issues to light, but we need to ensure that the balance of protection for employers and individuals is correct. We believe that the current clause achieves this, and I am therefore unable to support the hon. Lady’s amendment. However, I welcome the constructive work that she, among others, has been doing on the issue.

The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) asked about the level of £5,000 and penalties. The provision is intended to mirror the national minimum wage compliance regime, so there is method behind it, but it will be possible to amend it if necessary.

I turn now to our amendments 16, 17 and 31 to clause 17. Members who followed the progress of the Bill through Committee will recall that the original clause, then clause 16, was accepted into the Bill without debate. The purpose of the clause then, as now, was to amend specified primary legislation to replace all references to “compromise agreements”, “compromise contracts” and “compromises”, where they occur in an employment context, with the terms “settlement agreement” or “settlement”. By renaming compromise agreements, we are addressing any conscious or sub-conscious reluctance by a party to use these agreements arising from the perception that they are conceding or “giving in” on some or all of their arguments. The original drafting of the clause—with the agreement of the Under-Secretary of State for Skills, the hon. Member for West Suffolk (Matthew Hancock)—extended the change of name to Northern Ireland in so far as it related to the National Minimum Wage Act 1998. Having since considered matters further, my Northern Ireland colleagues have concluded that such a change should not be made in isolation and should form part of the wider review of employment law that they have recently launched. As a consequence, it is necessary make minor amendments to restrict the effect of the name change to England, Scotland and Wales in only that Act.

I commend the Government amendments to the House and hope that I have fully explained why we are unable to support the other amendments in the group.

[Mr Speaker]

Before I call Mr Murray to speak to the new clause from the Opposition Front Bench, I have a short statement to make. Nominations for the Chair of the Procedure Committee closed yesterday, and an election was held by secret ballot earlier today. The following candidate was elected: Mr Charles Walker. The full breakdown of voting is set out in a paper which will be available from the Vote Office. I congratulate the hon. Gentleman on his election.

[Mr James Gray (North Wiltshire) (Con)]

On a point of order, Mr Speaker. I would be most grateful if you could point me to the procedurally correct way of congratulating my hon. Friend the Member for Broxbourne (Mr Walker) on an outstanding victory, wishing him well in chairing an extremely important Committee of this House, and committing myself to serving under him loyally as an ordinary member of the Committee in future.

[Hon. Members]

Hear, hear.

[Mr Speaker]

I am extremely grateful to the hon. Gentleman for his point of order, and the reaction of the House shows that Members as a whole are as well. I thank him for what he said and for his participation in the election.

[Ian Murray]

I congratulate the hon. Member for Broxbourne (Mr Walker) on his election to the Procedure Committee.

Let me, too, start with an affair of state by saying happy birthday to the shadow Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for Streatham (Mr Umunna). I will not lead the House in a chorus of “Happy Birthday”, but we wish him many happy returns.

While I warmly welcome the new Minister to her place, I have to say, with a tinge of disappointment, that I will miss her predecessor, the hon. Member for North Norfolk (Norman Lamb), for two reasons. First, we incessantly used his book, “How to maximise compensation at an employment tribunal”, in Committee. [Interruption.] For the information of the hon. Member for Skipton and Ripon (Julian Smith), the then Minister was formerly an employment lawyer. Secondly, at the end of Committee proceedings we bought him a small gift, “Fifty Shades of Grey”, relating to his other passion in life, and I was looking forward to questioning him on that. I hope that the hon. Lady has read the book, because then some of the references in my speech might make more sense.

It is an indictment of how uncomfortable the Minister is with this part of the Bill that the Government have restricted the time available on Report to deal with the complicated issues within it. Let me be clear from the outset. It does not matter how much the Secretary of State stamps his feet or the Liberal Democrat Minister denies it, this Bill is delivering Beecroft by the back door. It is not just Labour Members who are saying that. I am delighted that the hon. Member for Skipton and Ripon is in his place, because he said the same in Committee, much to the disdain of the former Minister. As is consistent with most of the clauses in this hotch-potch of an enterprise Bill, these changes to rights at work are not about enterprise and are not a panacea for a Government with no strategy for growth.

I cannot emphasise enough that the hard-fought-for rights of employees up and down this country are not the reason we are in a double-dip recession; the failed economic policies of this Government are the reason.

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[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 4—Town and country planning: Amendment of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007—

‘(1) Class 3 of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, (Classes of advertisements for which deemed consent is granted) is amended as follows.

(2) In item 3A, after “sale”, leave out “or letting”.

(3) In item 3A(2), after both uses of “sold”, leave out “or let”.

(4) In item 3A(2), after “sale”, leave out “or letting”.

(5) In item 3A(8), after “sale”, leave out “or letting”.’.

New clause 5—Town and country planning: responsibilities of housing authorities—

‘(1) Local authorities in England which enjoy day-to-day responsibility for housing policy within their local authority area may make by-laws regulating for all or part of the authority the display of external advertisements concerning property lettings.

(2) If a housing authority has not specifically provided for the display of external notices advertising a property to let then such a notice is not permitted.’.

New clause 6—Town and country planning: offences—

‘(1) It shall be an offence to display an external notice prohibited by subsection (2) of section (Town and country planning: responsibilities of housing authorities).

(2) A person guilty of an offence under subsection (1) is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(3) A person guilty of a second or subsequent offence under subsection (1) is liable, on summary conviction, to a fine not exceeding level 5 on the standard for each seperate such offence.’.

New clause 7—Town and country planning: commencement and extent—

‘(1) Sections (Town and country planning: Amendment of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, Town and country planning: responsibilities of housing authorities, and Town and country planning: offences) come into force two months after the day on which this Act is passed.

(2) Sections (Town and country planning: Amendment of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, Town and country planning: responsibilities of housing authorities, and Town and country planning: offences) extend to England only.’.

New clause 20—Local authorities: powers relating to deemed consent—

‘(1) Part 2 Regulation 7 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 is amended as follows.

(2) In item (1) delete “Secretary of State” and insert “local authority”.

(3) In item (1) delete “upon a proposal made to her by the local planning authority”.

(4) In item (1) delete “she” and insert “the local authority”.

(5) In item (2) delete “ Secretary of State” and insert “local authority”.

(6) In item (2b) delete “her” and insert “the local authority’s”.

(7) In item (3) delete “Secretary of State” and insert “local authority”.

(8) In item (4) delete “Secretary of State” and insert “local authority”.

(9) In item (5) delete “ Secretary of State” and insert “local authority”.

(10) In item (5b) delete “the local planning authority and to any other” and insert “any”.

(11) In item (5) delete part (c).

(12) In item (5b) delete “her” and insert “the local authority”.

(13) In item (5c(i)) delete “she” and insert “the local authority”.

(14) In item (5c(i)) delete “her” and insert “the local authority’s”.

(15) In item (6) delete from “Where” to end and insert “Where the local authority makes a direction it shall send a copy of its reasons to every person who has made a paragraph (3) representation.”.

(16) In item (7) delete “unless the Secretary of State otherwise directs”.

New clause 21—Restriction of advertisement relating to property lettings—

‘(1) Local authorities in England which enjoy day-to-day responsibility for housing policy within their local authority area may make by-laws restricting for all or part of the authority the display of external advertisements concerning property lettings.

(2) It shall be an offence to display an external advertisement concerning property letting in areas or cases where the Local Planning Authority has, under subsection (1), passed a by-law prohibiting external advertisements concerning property letting.

(3) A person found guilty of an offence under subsection (2) is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(4) A person found guilty of a second or subsequent offence under subsection (2) is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale for each such offence.’.

Amendment 91, line 7 after ‘directors;’, insert

‘to make provision about advertisements concerning property lettings;’.

[Mr Brown]

New clause 21 is subsidiary to new clause 20, as are amendments 91 and 69. I will not speak to new clauses 4 to 7, which offer an alternative way of dealing with the same problem. I believe that new clause 20 offers the better of the two routes forward, and I am grateful to my right hon. Friend the Member for Leeds Central (Hilary Benn), the Front-Bench spokesman on these matters for the parliamentary Labour party, for suggesting it to me. New clause 21 sets out the offences; amendment 69 sets the date of enactment, which will be the same as for the rest of the Bill. I have been advised by the Public Bill Office that amendment 91 is a technical necessity for my principal proposal.

I wish to amend regulation 7 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, so that matters relating to the control of estate agents’ “To let” signs are under the control of the local authorities that make byelaws about such matters, rather than being governed by primary legislation and the central regulation that currently applies. The proposals do not abolish the central regulation of the original enactment; they merely give local government the right and ability to supplement it. That could mean extending the use of “To let” signs, but it is far more likely to mean restricting it.

This is a moderate proposition, and when I introduced a ten-minute rule Bill on the subject it had all-party support and its First Reading was not opposed. The problem is that the “To let” sign regime is widely abused in urban areas, and properties with short-term leases find that the signs are left up all year round. Why would an estate agent or landlord want to do that? Because the sign serves as a form of advertisement for the lettings agent. In the modern era, the signs do not facilitate the search for flats; they just advertise the estate agent.

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[Matthew Hancock]

I beg to move amendment 21, page 42, line 38, leave out ‘, other than the Scottish Ministers,’.

[Mr Speaker]

With this it will be convenient to discuss the following: Government amendment 22.

Amendment 63, page 43, line 1, leave out ‘may’ and insert ‘must’.

Amendment 64, page 43, line 4, after ‘specified period’, insert ‘, or’.

Amendment 65, page 43, line 6, after ‘specified period’, insert ‘, or’.

Amendment 66, page 43, line 10, leave out line 10 and insert ‘If the provision is made by virtue of subsection (2)(a), it includes’.

Amendment 67, page 43, line 19, leave out ‘may’ and insert ‘must if necessary’.

New clause 26—Review of legislation relating to health and safety at work and application of sunset and review provisions to this legislation—

‘(1) The Secretary of State must—

(a) carry out a review of the effectiveness of all existing legislation relating to health and safety at work, and

(b) prepare and publish a report setting out the conclusions of the review.

(2) The review and report must quantify, in particular—

(a) the effectiveness of the legislation in terms of reducing deaths, injuries and sickness in the workplace,

(b) the human cost, and full societal costs of work-related injuries, deaths and ill-health in terms of pain and suffering, injuries, sickness and years of life lost, and

(c) the full societal costs of the impact of the legislation including those costs resulting from welfare and healthcare spending, and resulting from the number of days lost in the workplace due to ill-health.

(3) Subordinate legislation under section 14A of the Interpretation Act 1978 in respect of any provision relating to health and safety at work may not be made until after the report has been published.’.

[Matthew Hancock]

Amendments 21 and 22 are technical amendments, the effect of which I hope will be straightforward and non-controversial. The changes proposed in Clause 50 will support the implementation of the Government’s policy on reducing the burden of regulation by allowing a sunset and review provision to be included in any future secondary legislation. They will enable the Government to put in place a robust and enduring system for tackling obsolete, burdensome or ineffective regulation, in line with the principles set out in the sunsetting guidance first published in March 2011.

I am pleased to say that those principles and the proposed change in the clause are widely supported and received detailed scrutiny in Committee before the summer. The changes proposed in clause 50 are permissive, broad in scope—intentionally so—and apply to powers to make subordinate legislation falling within the scope of the Interpretation Act 1978. Without qualification, this would include powers in a UK Act of Parliament exercisable by Scottish Ministers, whether in relation to matters devolved to the Scottish Parliament or in relation to matters reserved to Westminster.

Following earlier consultation with Scottish Ministers, however, agreement was reached to exclude powers exercised by Scottish Ministers from the effect of the changes. Among other things, that is consistent with the convention, under the present devolution settlement, which has cross-party support, that the Westminster Parliament will not normally legislate on matters devolved to the Scottish Parliament, without the consent of the Scottish Parliament. That seems reasonable to me.

Following further consultation with interested parties, it has become apparent that a further change is required to address the related issue of the powers of non-ministerial Scottish bodies and other persons under UK legislation. For example, the Registration of Births, Deaths and Marriages (Scotland) Act 1965 provides the registrar with various powers to make subordinate legislation in areas of devolved competence. Equally, the Court of Session has powers under successive UK Acts, most recently the Court of Session Act 1988. Because these are powers to make subordinate legislation within the meaning of the Interpretation Act 1978, they would also be in the scope of the changes proposed in clause 50. The effect of the Government’s amendments is to ensure that the powers exercised by non-ministerial Scottish bodies and other persons that fall within areas of devolved competence are excluded.

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[Chris Bryant (Rhondda) (Lab)]

On a point of order, Mr. Speaker.

[Mr Speaker]

We will come to the hon. Gentleman’s point of order. I am saving him up. It would be a pity to waste him prematurely.

Clause 40

Cartel Offence

Amendments made: 18, page 37, line 20, at end insert—

‘(6) After section 188A (as inserted by subsection (5) above) insert—

“188B Defences to commission of cartel offence

(1) In a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, it is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from customers at all times before they enter into agreements for the supply to them of the product or service.

(2) It is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from the CMA.

(3) It is a defence for an individual charged with an offence under section 188(1) to show that, before the making of the agreement, he or she took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or (as the case may be) their implementation.”’.

Amendment 19, page 37, line 20, at end insert—

‘( ) After section 190 of the 2002 Act insert—

“190A Cartel offence: prosecution guidance

(1) The CMA must prepare and publish guidance on the principles to be applied in determining, in any case, whether proceedings for an offence under section 188(1) should be instituted.

(2) The CMA may at any time issue revised or new guidance.

(3) Guidance published by the CMA under this section is to be published in such manner as it considers appropriate.

(4) In preparing guidance under this section the CMA must consult—

(a) the Director of the Serious Fraud Office;

(b) the Lord Advocate; and

(c) such other persons as it considers appropriate.”’.

Amendment 20, page 37, line 21, leave out ‘this section’ and insert ‘subsections (1) to (6)’.—(Jo Swinson.)

[Chris Bryant]

On a point of order, Mr Speaker. I am not sure how to describe my relationship with the Prime Minister, but it is quite on and off. On 25 June, he said that he was going to refuse to answer any of my questions until I apologised to the House—even though I had already apologised to the House. On 27 June, just two days later, he did reply to a question, and he did the same in September, but today he is back to not replying to questions.

I fully understand the ruling that you gave this afternoon, Mr Speaker, as you are not in charge of the quality of answers, but I do not think that there has ever in the history of the House been an occasion when a Prime Minister has said that he or she would—full stop—not reply to any question. I think you have ruled, and previous Speakers have ruled on many occasions previously, that when a Minister refuses to reply to a written question, they must answer it, not least because the ministerial code, written by the Prime Minister, says:

“Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest”.

That, of course, is incorporated in a motion of the House, resolved on 19 March 1997. I would have thought that expressly saying that one will not reply to an individual Member of the House is an affront to the House; in particular, it is an affront to my constituents. It should not be countenanced, surely.

[Mr Speaker]

I am very grateful to the hon. Gentleman for his point of order, to which I make two points in response. First, with reference to the ministerial code, I simply remind the House that responsibility for it rests with the Prime Minister, and it seems unlikely that the Prime Minister will be minded to investigate himself. I say that not in a spirit of levity, but because I think it is a pertinent observation in practical terms. Secondly, I am sorry to disappoint the hon. Gentleman, and I do not intend any discourtesy to him, as I take the hon. Gentleman very seriously—almost as seriously as he takes himself. [Laughter.] I do take him extremely seriously and I have a very high respect for him, as he knows. What I would say at this stage is that this is clearly a highly controversial matter, on which I do not feel I can rule off the cuff now. That is not to duck it; I will reflect on the very important point that he has made and I will come back to him and, if appropriate, to the House. I hope that that is helpful.

Third Reading

Queen’s consent signified.