Employment Relations Bill

House of Commons, 21 July 1999.

Clause 10

Angela Browning (Conservative, Tiverton and Honiton)

I rise to probe the Government. The Bill, as amended in another place, clearly defines that the person who will accompany a worker when he or she is in dispute and invited to attend a disciplinary or grievance hearing must be an official of a trade union whom the union has reasonably certified in writing to have experience of, or received training in, acting as a worker's companion in such hearings. The fact that someone has a right to be accompanied and may wish to be so accompanied is not in dispute. However, it would be helpful to know exactly what the Government mean by "reasonably certified". Who will be the arbiter of that certification or the qualification of the person accompanying the worker as having received training? As the Minister will know, concern has been expressed in both this House and another place specifically on the right of a worker to choose. Will the Minister clarify whether the trade union official will be from the worker's trade union or from a trade union from the worker's workplace or company? It is important that the worker should have confidence in the official who accompanies him or her, not only because the official may give technical or even legal advice, but because the official must be in a position to give the worker the moral support that is clearly desired. The worker must therefore have confidence in the relationship.

Tim Collins (Conservative, Westmorland and Lonsdale)

Does my hon. Friend agree that it would be helpful if the Minister clarified in what, if any, circumstances the provision of a certificate from a trade union stating that an official had met the required standards could be withdrawn? It would be very damaging if, having once been certified, someone was decertified for such purposes because the trade union felt that that person was not the right official to represent someone. As she rightly says, the individual should have as wide a choice of officials as possible. We need to know whether a certificate may be withdrawn. Preferably, that should not be possible.

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend makes an extremely good point. I have a further question to ask of the Minister. Let us put ourselves in the position of an employer of a trade union official who is certified to carry out this work, and is called upon several times to accompany workers to disciplinary or grievance hearings. What sort of arrangement will there be if that individual is required to travel to companies and locations well away from their workplace? What requirement, if any, might an employer reasonably make of that individual if they become a specialist and intend to fulfil that role, perhaps outside their workplace? It would help if the Minister would clarify some of the matters on which we have asked questions tonight.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to my hon. Friend for asking many of the questions that I would otherwise have asked the Minister. I have one more question to ask in addition to that which I posed in my earlier intervention. If the amendment is accepted and if the Bill is enacted, how will a trade union be defined? Hon. Members will be aware—and you will be aware, Mr. Deputy Speaker—of the circumstances in which unions can, from time to time, fragment. We remember the Union of Democratic Mineworkers coming out of the National Union of Mineworkers 10 or 15 years ago. How is a union to be defined for these purposes? Who are the officials defined to be acting on behalf of that union? How is the process of change, as one union merges into another or splits away from a union, to be managed for the purposes of ensuring that courts can easily interpret this legislation, should it reach the statute book? I should be grateful if the Minister would address those points in his reply.

John Battle (Labour, Leeds West)

I understand that the hon. Member for Tiverton and Honiton (Mrs. Browning) intends to probe, not resist, the amendments that the Government have made. That is welcome. Amendment No. 8 is a straightforward grammatical amendment, avoiding unnecessary repetition. Similarly, amendments Nos. 12 and 13 correct a minor inconsistency. The substance of amendments Nos. 9 and 10, to which the hon. Member for Tiverton and Honiton addresses herself, concerns the list of persons who may be an accompanying person. Hon. Members will be aware that the subject was much discussed in the House and in the other place, and I think that it is fair to say, and widely known, that the Government resisted attempts to minimise the scope for people who are not fellow workers to act as that accompanying person. As the hon. Lady says, it is important that the individual has confidence in the person who stands with them, as it were. The Government resisted attempts to minimise the scope for two reasons. First, if we had not done so, the right would have been cast too narrowly and, secondly, it might well have excluded some of the most appropriate and effective individuals—experienced trade unionists who are highly qualified, skilled and trained—from performing a standard function of a trade union. I am grateful for the support given to the Government in the other place on this point during consideration of this part of the right. I know that that consensus was evolving around our position and I pay tribute to the supportive remarks that were made in the other place about the wealth of expertise and experience that full-time and lay officials of trade unions can bring to bear during disciplinary and grievance proceedings. I believe that there is a good degree of consensus of support for that expertise. However, we noted the concerns of those who believe that it might prove unhelpful or disruptive to allow inexperienced outsiders to participate in internal procedures. As a result, we redrew the list of people who may act as an accompanying person, with a view to ensuring that only those who are suitably qualified for the task will be entitled to act as the accompanying person. I should point out that the right for a fellow worker to act as a companion remains as it is. Indeed, in many cases, the fellow worker will also be the local union representative, so the changes really relate to the outsiders who can attend the hearing.

David Chidgey (Liberal Democrat, Eastleigh)

I wish to clarify a point. The answer may be in another part of the Bill, which I have missed. Amendment No. 9 specifically says that the official is "employed" by a trade union. A few moments ago, the Minister said that the official could be employed part-time or full-time. But is there meant to be, or is there, a distinction between an official who is a paid employee and an official who is merely appointed as a representative?

John Battle (Labour, Leeds West)

The traditional definition of the difference between a lay representative and a trade union official is written into trade union law. The condition is that lay officials must be reasonably certified, in writing, by their union as having had experience of acting as an accompanying person or as having received training in performing that role. The amendment does allow for certification to be withdrawn. Just as certification must be given in the first instance, to ensure that we get the right person into position and that people may have confidence—as the hon. Member for Tiverton and Honiton said—in that person, similarly, if it were proved that the person was ineffective, that could be raised with the tribunal by the person who objected to that representative, and they could ask for that certification to be withdrawn at the appropriate time. I therefore hope that the amendments will give benefits to all parties to grievance and disciplinary hearings, because workers and employers need to be reassured and to rest easy that the accompanying person is an appropriate and competent person to do the job.

Tim Collins (Conservative, Westmorland and Lonsdale)

The Minister said that it was important that the accompanying person should be effective in the representations that they make on behalf of others, and he spoke about the possibility of withdrawing certification if someone proved to be ineffective. The words of amendment No. 10 simply talk about certification as having experience of, or … having received training". If one has experience or has received training, those things do not disappear with the passage of time. Might the Minister be saying that the courts, in interpreting the legislation, should have regard to something that is not in the terms of the amendment—effectiveness?

John Battle (Labour, Leeds West)

Let us test how the provision would work. I believe that it is up to trade unions to decide how they operate the accreditation process. By that I mean that they have a strong interest in ensuring that they field suitable lay representatives. Otherwise, full-time officials might have to be called in to sort out a problem caused by an inappropriate person who had been sent in. I am tempted to add that, if that happened, a trade union's reputation might be damaged. It might lose the confidence not only of employers but of its members, because its service to its members would be seen to be second rate. Therefore, it is in unions' interests to get the process right. As I believe that the hon. Member for Westmorland and Lonsdale (Mr. Collins) acknowledges, most trade unions already provide training for their lay representatives, often via courses, educational services and the Trades Union Congress. It is in a trade union's interests to satisfy itself that officials who can perform such work are competent to do it. Probably, unions will not consider issuing a certificate to new lay officials until they have completed a basic shop steward's course, for example, or have been in post for a certain length of time. I believe that that is appropriate because the condition is that lay officials must be "reasonably certified"—in writing, as I emphasised—by their union as having experience of … acting as an accompanying person or as having received training in performing that role. I was asked how a union was to be defined. As the hon. Member for Westmorland and Lonsdale mentioned it, I remind him that the Trade Union and Labour Relations (Consolidation) Act 1992 provides a clear definition of a union. An organisation would have to meet that definition in order for its officials to qualify as an accompanying person. I hope that I can reassure the hon. Member for Tiverton and Honiton that the purpose and intent of the amendments are to sharpen up the clause and give people rights to which they are entitled.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to the Minister. Before he concludes, will he address the point about the employers of people who act as the accompanying official to people appearing before tribunals? As I outlined, an employee might find that, as a consequence of being certified, he or she was spending such a lot of time on this specialised work that it was having an impact on the employment that he or she was expected to carry out. Will the Minister say a few words about how he envisages that situation?

John Battle (Labour, Leeds West)

The hon. Lady makes a fair point, but the whole purpose and tenor of the Bill is to develop a partnership at work. This is an absolute backstop case. The aim is not to be in a situation where an accompanying person is needed. Such a situation implies a failure by employers in the first instance to deal with grievances or disciplinary issues in an appropriate procedural manner. Tribunal proceedings detract from the focus of the employer and employee getting together and getting on with the job in a positive spirit. I accept the hon. Lady's point, but the purpose is to enable employees to have rights at work and to have people appropriately certified to stand by them if absolutely necessary and needed. Our intention is to reduce the number of occasions on which we need to be driven into those circumstances.

New clause

Stephen Byers (Labour, North Tyneside)

I beg to move, That this House agrees with the Lords in the said amendment.

Stephen Byers (Labour, North Tyneside)

I shall deal briefly with the amendment and then spend slightly longer on the amendments tabled by the right hon. Member for Bridgwater (Mr. King) and his colleagues on the Intelligence and Security Committee, which raise some important points of principle. It is only right that the House should have the opportunity of discussing the way in which we want to treat these sensitive issues. The amendments that were agreed to in the other place reflect a correct understanding in addressing the sensitive issue of national security. As drafted, clause 13(1) applies the right to be accompanied in grievance and disciplinary hearings to persons in Crown employment. It therefore applies to employment within the Security Service, the Secret Intelligence Service and the Government communications headquarters. I am sure that the House will agree that the staff of the security and intelligence agencies rightly have a unique status. The sensitive nature of their employment sets them apart from other workers. We have therefore given further consideration to how their inclusion in this part of the Bill can reflect that particular position. We believe that there are amendments before the House that do precisely that. I hope that when Members have considered the amendments that were agreed in another place, they will agree with that approach. This evening, the House will want to concentrate on amendments Nos. 323(a), (b), (d) and (e) in the name of the right hon. Member for Bridgwater. I hope that Government amendment No. 323(c) will go some way towards resolving the difficulties that can be identified in the right hon. Gentleman's amendments. First, I shall address amendments Nos. 323(a) and (b). I shall then outline why we feel that amendment No. 323(c) is the appropriate way forward in dealing with these matters. The Bill provides that a Minister may direct that an applicant and his representative be excluded from all or part of proceedings where the interests of national security require it. We anticipate that the power to exclude from all future proceedings will be used extremely rarely and only in the most extreme circumstances where national security interests could not be adequately protected otherwise. When the applicant or his representative is excluded the Attorney-General or, in Scotland, the Advocate-General, may appoint someone to represent the applicant's interests. However, we believe that the applicant, or his or her representative on their behalf, should always be entitled to make a statement of his or her case. We undertook in the House of Lords to ensure that this right could be provided. If right hon. and hon. Members address the detail in amendment No. 323(c), they will understand that we have tried to discharge the commitment that we gave in the House of Lords in the way that amendment No. 323 outlines. 7.15 pm Amendment No. 323(c) ensures that the tribunal regulations that will be made with regard to proceedings involving national security matters will be able to provide the right to make a statement in accordance with our policy. Lest there be any doubt, the Government undertake that the regulations will provide that an applicant or his representative will always be able to make such a statement. I hope that the amendment will be recognised as one that discharges the obligation and the commitment that we recognised and gave in the House of Lords. It will be underpinned by the regulations that, we shall wish to introduce. I give a commitment that, in drawing up those regulations, we shall need to consult members of the Intelligence and Security Committee of which the right hon. Member for Bridgwater is the Chairman. That is wholly appropriate because they have drawn a particular issue to our attention. I believe that we shall benefit from the advice that we might receive from the right hon. Gentleman and his Committee. I would certainly wish to do that. Amendments Nos. 323(d) and (e) would enable the commissioners to review the exercise of a Minister's power of direction. I have considered the matter carefully and I am grateful to the right hon. Member for Bridgwater for the opportunity of discussing the matter with him yesterday and having time to reflect and to discuss with officials whether we could agree to the proposal. I shall be asking the House to resist the amendments, which contain technical flaws. I know that the right hon. Gentleman will consider that to be the last resort of a Minister who is struggling. I found myself in his position when in opposition. There are three particular issues. First, the amendments would go beyond the agencies about which the right hon. Gentleman is concerned and extend the provision to all other Crown employees. That would go far wider than the group that we wish to address.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The Secretary of State must recognise that the circumstances would arise only in the case of a Crown employee whose ability to attend a tribunal or to be represented at it was removed because the Minister judged that it was a matter of national security. That would normally be only an employee of one of the agencies, or perhaps someone working in the Cabinet Office, for example, who had a similar national security involvement. It is because the Government have drafted this section of the Bill in terms of Crown servants rather than of agencies that it has such a wide theoretical application, but, in practice, a narrow one.

Stephen Byers (Labour, North Tyneside)

I understand that argument entirely. However, as I have said, the amendments would go beyond the agencies with which the right hon. Gentleman is concerned. It may be that civil servants working in particularly sensitive areas would be affected. I accept that. However, I am not sure that they should be regarded in exactly the same way as the particular groups that I think the right hon. Member for Bridgwater and his colleagues are concerned about. There is a safeguard. If the individual feels that he has been treated in an inappropriate way, he will be able to seek judicial review at the time that the direction is made. The direction will be made publicly and the individual will know that that is the case. On the other hand, the commissioners must apply the principles of judicial review retrospectively. Parliament has decided that that is appropriate where the act under review was carried out secretly for obvious reasons. That is not so in the case of a power of direction. For those reasons, amendments Nos. 323(d) and (e) do not achieve the objective of the right hon. Member for Bridgwater and his colleagues. It goes beyond that and changes fundamentally the powers that commissioners would have to review the exercise of the power of direction being operated by a Minister. Therefore we feel that it is an inappropriate step to take, and I shall be asking the House to resist it. I believe that the opportunity of seeking a judicial review is the appropriate way forward. Legal aid is available in particular circumstances for judicial review. People who felt that they had been adversely treated as a result of a power of direction being exercised by the Minister would have recourse to that course of action. I believe that to be appropriate. There would be great difficulties if we accepted these two amendments. To conclude, I hope that the House will agree with the amendments starting with amendment No. 50. In relation to amendments (a) and (b), I give the House an assurance that, in drawing up the regulations, we would want to consult the Intelligence and Security Committee about the detail of the regulations. I hope that in supporting amendment (c), the House will recognise that we are putting in place a mechanism which we hope will overcome some of the reservations.

Allan Rogers (Labour, Rhondda)

Would it not be far better to have tabled amendments that would resolve all the issues now, rather than saying that the Government will do that in the future, through regulations and by other means? It would have been easy enough, if the Government had followed the recommendations made by the Intelligence and Security Committee in our annual report.

Stephen Byers (Labour, North Tyneside)

I hope that, by drawing up the regulations in consultation with members of the Committee, on which my hon. Friend the Member for Rhondda (Mr. Rogers) serves, we will be able to accommodate the concerns that have been expressed, which I accept. Let the House be clear about that. An important point has been raised in amendments (a) and (b). Since the conversation that I had with the right hon. Member for Bridgwater yesterday, I have been looking for a way of facilitating matters. I believe that, by giving the assurance about how we will draw up the regulations, we might be able to meet the honestly expressed concerns of the Committee. I must ask the House to resist amendments (d) and (e). They would go beyond the powers that we give to commissioners at present. There is the opportunity for the individual to seek judicial review. In the circumstances, that is the appropriate course of action to take.

Tom King (Conservative, Bridgwater)

I am grateful to the Secretary of State for his initial response to the amendments. I am pleased that he has done us the courtesy of coming and responding to them himself. I am encouraged by that. I would otherwise be enormously disappointed by the response that we have so far received from the Government. I am encouraged because I believe that the Secretary of State is capable of listening to an argument and that if, on reflection, he considers it valid, he has the standing and the independence to accept the amendments. I proceed on that optimistic basis. The Secretary of State will allow me, I hope, to point out that this is a remarkable occasion. We are not a Select Committee, although I understand why he slipped into that terminology. That is a tendentious area into which I shall not venture on this occasion. The composition of our Committee is remarkable. We are all parliamentarians. We probably have a majority in the Chamber at present—I warn the Secretary of State of the situation that he faces. He will note that we have considered the issues at great length and on an all-party basis. I apologise to the Secretary of State for the fact that originally there was no concept of including such a provision in his Bill. He is being asked to include a recommendation that we made to the Prime Minister in our last annual report. After some impatience that a recommendation accepted by the Prime Minister had failed to make further progress, it was included as an amendment to the Bill at a very late stage in the Lords. It is unfortunate for the Secretary of State that not only are we all parliamentarians with the capacity to move amendments to his Bill and his Lords amendments, but we then report the outcome—his response—to the Prime Minister. We are anxious to preserve his prospects and to comment favourably in our report, which we are currently drafting. The House has never debated these issues. It has never heard anything about these matters. They were never part of the Bill. The Government have responded to calls for a necessary and sensible improvement to the law. I make no secret of the fact that that arises out of one particular case of a gentleman who has since taken his grievance beyond any reasonable length, to the extent of betraying a considerable number of people who worked in the intelligence services. His claims are full of errors because it is some time since he was in the Secret Intelligence Service. However, the fact remains that that gentleman had a grievance. As a Committee, we sought to address what we considered a genuine grievance. He was denied what he thought were legitimate rights that would imply to other people other forms of employment. I shall quote the paragraph that is the fons et origo of the proposal. It states: The Committee also believes that everything possible should be done to ensure that employees of the Agencies have the same rights as employees elsewhere. One of these is access to industrial tribunals. Under current procedures, industrial tribunals may hear cases involving national security, in camera and possibly with the Tribunal President sitting alone. However, if this is deemed not to be sufficient protection where vital national security matters may be involved, the Secretary of State can issue a certificate preventing an individual from having access to a tribunal. That is what happened in that particular case. The Committee report continued: The Tribunals established under the Security Service Act 1989 and the Intelligence Services Act 1994 were not set up to handle complaints involving staff of the Agencies, and have made clear their view that they are not adequately equipped to do so. Our recommendation was this: We believe that it ought to be possible to constitute a tribunal of members and staff qualified to serve a normal industrial tribunal, but of the necessary integrity and security clearance to handle such potentially sensitive material, and we so recommend. The Prime Minister accepted that recommendation and eventually, after much discussion, the Employment Relations Bill was identified as the vehicle to which the amendment should be attached. Last week, rather late in the day, without the Committee having been consulted about the final form, which might have avoided some of the problems facing us, the amendments were tabled in the House of Lords. That was done in some rush. Lords amendment No. 323 provides that section 4(7) of the Employment Tribunals Act 1996 shall cease to have effect. I hesitate to point out to the Secretary of State that, as far as I can see, it should cease to have effect, because the Act does not exist. The reference could be to the Employment Rights Act 1996 or the Industrial Tribunals Act 1996, but I have not been able to identify the Employment Tribunals Act 1996 which the amendment claims will cease to have effect. The Vote Office searched high and low for such an Act, but the reference throughout the clauses seems to be to a non-existent Act. I do not know what mechanism exists within the procedures of the House to deal with that. This is the last stage of the Bill, which now goes for Royal Assent, subject to any amendments that may go back to another place if the Lords amendments are disagreed to. We want amendments to be made. 7.30 pm The purpose of our exercise was to ensure that the rights enjoyed by a person in such a situation were as near to being equivalent to those enjoyed by any other employee involved in any other activity as was reasonably possible, having paid due regard to national security. After the amendments on which we were not consulted had been made, we were extremely concerned to find that a provision had been included that enabled a Minister of the Crown to make a regulation to direct a tribunal to exclude an applicant from all or part of his own employment tribunal proceedings. I doubt whether anything could more obviously negate the purpose of making the improvement that we have suggested and which we thought the Government had accepted. That is why we have tabled amendment (a) to Lords amendment No. 323, which applies to the applicant, and amendment (b), which applies to his representative. The Secretary of State rightly said that it was immediately acknowledged in the other place that that provision was unacceptable. Although I accept that Government amendment (c), which has been tabled today, fulfils the undertaking that was given in the other place, we believe that it does not entirely meet our concerns. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) may have something to add on that point.

Allan Rogers (Labour, Rhondda)

I am sure that the right hon. Gentleman accepts that the provision was obviously included by mistake. The Government, Labour Members and the party which I represent are all in favour of trade union rights, and the very idea of preventing a person and his representative from putting his case in front of a tribunal would be complete anathema to every Labour Member. A drafting mistake has obviously been made.

Tom King (Conservative, Bridgwater)

That is what we believe. Our inquiries suggest that the provision has been lifted straight from immigration tribunals legislation and transferred across, in toto and perhaps at some speed, to the Bill. I am grateful that, as soon as the matter was raised, it was recognised that that position could not be sustained, that a drafting error had been made and that further consideration was required. I hope that we can take the Government a step further so that they recognise that they should go all the way and accept our amendment. In view of the Government's public statements and what I believe to be their genuine philosophy in respect of this matter, I should be amazed if they resisted our amendments. They deal with circumstances in which a Minister decides on national security grounds that he has to take quite exceptional steps that would normally be quite unacceptable, such as excluding somebody from part of his own industrial tribunal hearing without any review being undertaken by anybody thereafter. The Secretary of State has said that such a person could have a judicial review—at his own expense, I imagine—but a chap who has lost his job and is complaining about unfair dismissal would find that he has been excluded from his own hearing or a major part of it. He would not hear any of the evidence against him and he would be able to challenge what he considers to be an unreasonable act only at his own expense. For those reasons, I said at the beginning of my remarks that I hope and believe that the right hon. Gentleman is the sort of Minister who will listen to arguments. I appreciate that this issue has been bounced on him and that it is not germane to the main purposes of the Bill, but he has to take responsibility for it. The other problem—for which I do not apologise, because we did not create it—is that it is so late in the day that this is the last chance that anyone has to put things right. The Secretary of State may feel that he could be exposed to criticism, and the first person who might criticise him may be the Security Service Commissioner, Lord Justice Stuart-Smith. I am not sure whether it has been drawn to his attention that Lord Justice Stuart-Smith's most recent report said that something should be done about this matter. On the tribunal, he said: In my earlier reports I drew attention to the unsatisfactory position regarding the Tribunal and their statutory position in relation to complaints from employees of the agencies who seek redress in relation to those matters which, but for security considerations, might have been dealt with by an Industrial Tribunal. I am disappointed that it has taken so long to find an effective remedy to this important problem but I am advised that the DTI, having consulted Ministers, are now working on a detailed proposal. That was said by the very commissioner to whom we are seeking to entrust responsibility for review. We consulted Lord Justice Stuart-Smith yesterday about the amendment that we have suggested. He has responded and I have been authorised by him to say that, if the amendment is acceptable to Parliament, he is content to undertake the proposed review in addition to his existing duties under the Security Service Act 1989 and the Intelligence Services Act 1994. He makes a further point, which was also made by the Secretary of State. He understands that the proposed amendment relates to all Crown servants. If so that is so, he would feel unable to express any view on whether he would be able to deal with the volume of work or whether he would be qualified to do so. The point about Crown servants has already been well made by the right hon. Member for Berwick-upon-Tweed in an intervention. As currently drafted, the proposals on the tribunal apply to the Secret Intelligence Service, the Security Service and Government communications headquarters, Cheltenham, but this problem could arise in respect of someone who was sacked from a position of Crown employment. People who work for the joint intelligence staff, on the assessment side and in the Cabinet Office dealing with national security matters are affected by national security considerations. This is the only opportunity that we have to help them and the Bill is the only relevant legislation before the House. If such people feel that they have been unfairly sacked—the Secretary of State would be the first to defend them in such a situation—they are entitled to their rights and they are entitled to go to a tribunal. If they find that they are excluded from their own hearing on grounds of national security, is not it right that there should be some review of the Minister's authority? That is all we are asking. I shall answer Lord Justice Stuart-Smith's question: we know of only one such case. Does the Secretary of State know of any more? The case of which I am aware has provided the substance for the amendment that we have tabled. I do not know of any others. If a huge number of people are being excluded from their normal rights on grounds of national security, a commissioner had better look at this issue and we need a full and proper safeguard. The Committee certainly wants the procedure regulations, to which the Secretary of State referred, to cover such eventualities and the way in which such matters should be handled. As a free man, if I may use that expression, the Secretary of State would be the first to fight for that and the first to say that Parliament should put such safeguards in place. That is what Parliament should be doing. It should be protecting the rights of people in such situations. It would be wrong to leave this significant power with no question of being reviewed. Lord Justice Stuart-Smith asks whether our proposal is meant to be some sort of remedy. We have not taken it that far, but have said that one should at least provide the protection that exists: the commissioners are charged with reviewing how Ministers—the Home Secretary and the Foreign Secretary, in the main—use the exceptional powers that override the normal law, which they are entitled to use to protect the national security. That protection is independent and distinguished. The commissioners review the exercise periodically and report to the Prime Minister on how those exceptional powers have been used. Is not this proposal just such an exceptional power? If the amendments are rejected, the Secretary of State will leave Ministers with an exceptional power that will be subject to no review, except at the expense of the applicant by judicial review. In spelling that out, I do not seek to make a party political point. In a sense, I am embarrassed because I appreciate that this matter has been wished on the Minister—he did not ask to deal with it. However, the Intelligence and Security Committee debated it at considerable length and concluded that the objective was right and proper. We originally identified it some three years ago. What we are debating tonight, late in this Session, and for the first time on the Floor of the House, are the arrangements to put a proper protection in place. I understand that it is a particularly difficult and awkward challenge for the Secretary of State, but I believe that he will able to rise to it and say that, in the current circumstances, he will not leave the matter unsettled and that the Government are prepared to put in place the necessary protections. The arguments that I have sought to make, and which other hon. Members may seek to make, are acceptable not just to me but to every member of my committee of all parties—senior Members of each party were represented on it—and to Lord Justice Stuart-Smith, so I fail to see why they should not be acceptable to the Secretary of State. The Committee would appreciate it if he could accept our proposals.

David Chidgey (Liberal Democrat, Eastleigh)

In his opening remarks, the Secretary of State said that he intended to consult on the amendments. Having heard the speech by the right hon. Member for Bridgwater (Mr. King), who made an eloquent and powerful case for the amendments, the Secretary of State has an opportunity to consult and reflect on the foot, so to speak. May I ask the Secretary of State to reflect on one further point? Not long ago, before the last general election, there was a cri de coeur from the Labour party that those employed at GCHQ would have the right to rejoin a trade union. There is not a great deal of difference between denying the right to free association and denying the right to free representation in a criminal sense. It does not sit well for the Government, who rightly made such a campaign out of the right to free association in a security setting at GCHQ, not to recognise the rights of those individuals now to have free representation and presence at their own examination. I hope that the Secretary of State can see the synergy between those two points of principle, and the way in which the Government will be regarded if they do not see that those points are compatible.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The Committee chairman described extremely comprehensively why we tabled the amendments. If there are deficiencies in the drafting of amendments (a), (b), (d) and (e), they are entirely my fault because I was given the job of drafting them. However, they are better drafted than the clause to which they were attached, which produced an unimaginable situation in which the object of this entire exercise—an employee of one of the agencies who has hitherto been denied an industrial tribunal when dismissed—would be refused admission to that very tribunal when it is granted. The Committee, which has a fair amount of experience of security and intelligence matters, could not envisage circumstances in which it would be appropriate or necessary to exclude the applicant from every part of the proceedings. We scratched our heads, but could not think of any. We asked the agencies, and they could think of no circumstances either. Such a provision has not even been sought by the agencies in question; it was simply bad drafting in the first place. The Minister has responded to that. When my noble Friend Lord Razzall moved an amendment in the other place, the Minister gave the undertaking that he is fulfilling in his amendment (c). Although that amendment is welcome because it goes 50 or 60 per cent. of the way towards what we want, much remains to be done. All that that amendment guarantees is that the applicant will be able to state his case before being thrown out. He will not be able to hear or challenge any of the evidence on which his dismissal is based, or even to know what that evidence is. I can envisage circumstances in which it will be necessary for the applicant and his representative to be excluded from part of the proceedings. I am sure that other Committee members can envisage them, too. For example, an applicant might then gain access to further information, which he might subsequently misuse as a result of his grievance against the agency. A case might require the presentation of some evidence of that kind. However, excluding an applicant simply from making his case is such a restriction on his rights that there should be a very high threshold to be crossed before that power can be used. A strong protection should be built in, as well as a review of how the power has been used. We tabled our original amendment because regulations could not have provided those protections so long as the statute made it clear that the Secretary of State was entitled to exclude the person from the entire proceedings. It was necessary to change the basic clause for the regulations to be manageable at all. I think that we can make some progress on this point tonight. The regulations could build in thresholds and protections. I thank the Minister for his assurance that the Committee will be consulted on the detail of the regulations. The remainder of our argument—some 40 per cent.—could be met now if the regulations set a high threshold, which would have to be met before the power could be invoked. We all remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense. That is why we tabled the other two amendments. The arguments that the Minister has made simply hold no water. He did not invent them—they have been provided for him. There is no flood of cases; there have hardly been any cases of this kind—none whatever in the category that he thinks represents an inconvenient addition to the total, which is people not in the agencies but in respect of whom a similar power might be used in the future. A commissioner review is appropriate because the applicant cannot know why the power has been used. The Minister rested his case on the argument that the commissioners review matters that are otherwise secret. The reasons for using the power are secret. The applicant cannot know the nature of the evidence that requires him to be thrown out of the tribunal. Somebody else must look at the matter. It is not sufficient to leave it to the tribunal, which does not have the power to bring the applicant back in—that is in the hands of the Minister. Somebody must have the power to report to the public that the power is being abused, and the commissioner is ideal for that purpose. That discipline would largely ensure that the power was not abused. I therefore strongly support what the right hon. Member for Bridgwater (Mr. King) said and ask the Minister to think again, even at this late stage. At the beginning of the Bill, there is a certificate of compliance with the European convention on human rights. After this clause was drafted and introduced in the other place, was it checked to establish whether the Bill still complies with the convention, given the restriction on the rights of the applicant that will result unless we carry some of the amendments?

Yvette Cooper (Labour, Pontefract and Castleford)

I shall be brief, as I had not intended to speak. I want to respond to my right hon. Friend the Secretary of State's objections to the amendments tabled on behalf of the Intelligence and Security Committee. He argues that there should be access to judicial review rather than to the commissioner, and that amendments (d) and (e) would significantly extend the powers of the commissioner. Judicial review is not sufficient in the absence of the commissioner. Our argument is that all these cases should be reviewed by the commissioner, not only those in which the applicant has the confidence or the resources to take the case to judicial review. Given that the applicant will be excluded from the proceedings, he will be in a difficult position to know whether he has a case to take to judicial review, whereas the commissioner could examine all these matters without putting the applicant's resources at stake. The second objection is that the amendments would significantly extend the powers of the commissioner. I do not see that as a problem. The only way in which they would extend the commissioner's powers would be in parallel with the extension of the Minister's powers under the Lords amendment, which gives the Minister the power to make a decision to exclude someone from the industrial tribunal in the first place. Under our amendments, the commissioner would be used in parallel with the additional powers given to the Minister on grounds of national security.

Stephen Byers (Labour, North Tyneside)

I am pleased that our approach on amendments (a) and (b) and our amendment (c) go 60 per cent. of the way towards meeting the concerns expressed by members of the Intelligence and Security Committee. I hope that, when we consult on the details of the regulation, we can get 100 per cent. satisfaction. That is almost impossible to achieve, but we shall try. We all want to achieve the principle that was articulated so well by the right hon. Member for Bridgwater (Mr. King). Even though we are dealing with unique circumstances, the individuals involved should, whenever possible, have the protection of the usual procedures that we give to other citizens, and we should try to secure that. However, a balance needs to be struck between the rights of the individual and the need to protect national security. We are clawing our way through consideration of how to achieve that balance. As I have discovered in the past 24 hours, these are complex areas, and we should take a careful approach. I should like to discuss the regulations with members of the Committee, and I hope that that will go some way towards satisfying their concerns in amendments (a) and (b). The right hon. Member for Berwick-upon-Tweed (Mr. Beith) had difficulty finding the relevant Act in relation to the amendments that have been tabled. The Industrial Tribunals Act 1996 had its name changed by the Employment Rights (Dispute Resolution) Act 1998. I am sure that he was fully aware of that, and of course I knew that all the time. I do not know why these difficulties are put in our way, but parliamentary counsel enjoy the little tricks that they play on us from time to time. As to amendments (d) and (e), the key point is that I have not been able to meet the concerns expressed by members of the committee on both sides of the House. In the end, it will be a matter of judgment. My view is that we have a well-established procedure by way of judicial review to challenge a decision taken by a Minister of the Crown. It is now a fairly common occurrence to have a judicial review of decisions taken by Secretaries of State and by Ministers. Legal aid is available for judicial review. I checked on that point yesterday, because I had a conversation with the right hon. Member for Bridgwater, and I was sympathetic to the point that if no finance is available, it will act as a deterrent to someone challenging a decision. Because of their unique nature, these may be exactly the circumstances in which the Legal Aid Board will look at a case sympathetically, so there may be some financial support. The balancing judgment to make is between the remedies available by way of judicial review, and the remedies and powers that the commissioner will have. One of the weaknesses of amendments (d) and (e) is that, by relying on the commissioner, they do not give him the power to act effectively in these matters. The commissioner does not have a remedy at his disposal. He has no power to overrule the direction that may be given by the Secretary of State or another Minister. He cannot intervene or overturn the decision that is ultimately taken by the employment tribunal. It is a fiction of a solution to the problem. I believe that the real remedy is the judicial review. The individual who has a complaint and is concerned about the direction being used will be able to seek a judicial review, which is a well-established procedure.

Tom King (Conservative, Bridgwater)

The Secretary of State bravely makes his case, but he should reflect on what he has just said, because it is an extraordinary argument. It is an argument against having commissioners in all these areas. The Intelligence Services Act 1994 states: The Commissioner shall make an annual report on the discharge of his functions to the Prime Minister and may at any time report to him on any matter relating to his discharge of those functions. The Secretary of State has said that no remedy is available to the commissioner. We have argued that the Bill will leave the plaintiff with no remedy, except to go on his own to the courts. If he is reasonably well paid—as he may well be—and has a little capital, he will not get legal aid.

Tom King (Conservative, Bridgwater)

I apologise, Mr. Deputy Speaker, but this is an exceptional situation. The Committee set up by the Prime Minister to advise on these matters is having to deal with an issue that has been incorporated in an inappropriate Bill on which we were not consulted. This measure has been introduced at the last minute. It was brought up in the other place, and this is the first time that it has been discussed in this House. I crave your indulgence, Mr. Deputy Speaker. I think that the Secretary of State would accept from me that his argument will not wash. He is not prepared, in this legislation, to give people in the position that we have discussed a remedy. Our amendment would provide the most limited protection, but it would mean that, if he became Home Secretary or Foreign Secretary, before his officials put a proposal to him that someone should not be allowed to attend part of his own industrial tribunal hearing, they would know that his decision would be reviewed. They could not plead national security and total secrecy so that the matter could not be sustained. If the Secretary of State were on the Opposition Benches, he would make a much better argument than I have, and he would murder the idea that the commissioner has no remedy. I beg him to reconsider, even at this late hour—that was not of our making. This is the last hour, because this legislation will soon become an Act. At the last gasp, the legislation will lack this vital ingredient. Our proposal would do the Government great credit.

Stephen Byers (Labour, North Tyneside)

I understand the power of the arguments that are being put. In the end, the House will have to make a judgment. I believe that the procedure that is available to challenge a direction by judicial review is the appropriate remedy in the circumstances. I know that members of the Committee would like the commissioner to have the power to intervene directly, but I feel that they should reflect on the role that the commissioner will play. That role will not involve the reviewing of individual cases; the commissioner will not operate in the way in which employment tribunals operate. It will involve the reviewing, in a more strategic way, of the workings of specific sectors. That is the right role for the commissioner, and that is why the House has not given the commissioner the power to intervene directly. This was never seen as being the appropriate role for a commissioner. The commissioner has a distinct role: he is to report to and, no doubt, to put pressure on Parliament by means of the avenues open to him. I believe that that role, and the commissioner's responsibilities, will be subject to confusion if he is told that he should be involved in individual cases that are before an employment tribunal.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I realise that the right hon. Gentleman's Department does not normally deal with these matters, but he must recognise that the commissioner's remit is to examine the way in which powers have been exercised in individual cases, and thereby to judge whether those powers have been abused. That relates directly to what the Committee seeks. It wants the commissioner to examine the way in which the Minister is using his power—not the substance of the issue before the tribunal—given that he possesses information that no one else has. That is what gives the function its value.

Stephen Byers (Labour, North Tyneside)

I think that I understand the position. The commissioner has not the power to intervene in relation to an individual's case, and he has no such power in relation to an employment tribunal. That is precisely the issue that is addressed in the amendment. The commissioner has the power to challenge decisions made by Ministers, and to review those decisions, but he has no such powers in relation to individuals before employment tribunals. Opposition Members may disagree, but I believe that we have provided a suitable method for decisions to be made by Ministers of the Crown, by way of judicial review. It is well established, and I consider it wholly appropriate. I do not think that amendments (d) and (e), which would extend the commissioner's responsibility, will provide an effective remedy for the individual. I hear what the right hon. Member for Bridgwater says, but, in the circumstances that we are discussing, the individual will clearly want a way of remedying what he or she sees as a wrong.

Yvette Cooper (Labour, Pontefract and Castleford)

Amendments (d) and (e) would not prevent an individual from using the judicial review system as a remedy. Moreover, the proposed extension of the commissioner's powers would allow for an additional review of the Minister's decisions. That could take place in exactly the same way as the commissioner's review of other ministerial decisions on grounds of national security that infringe individual rights.

Stephen Byers (Labour, North Tyneside)

A range of opportunities can be provided, if that is what the House wants. My point is that a remedy is clearly available to an individual who feels aggrieved, in the form of a judicial review. I consider that to be an appropriate remedy, in that it provides the opportunities that the individual may seek. I feel that the opportunities offered by recourse to a commissioner are rather fictional in terms of the support that they can give the individual.

Tom King (Conservative, Bridgwater)

I much appreciate the Secretary of State's courtesy in giving way again. I fear that we are getting into a bit of a muddle. The right hon. Gentleman's concept of the commissioner's role does not conform to the way in which he will work: it is not a question of a chap having a right to go to the commissioner, as was suggested. If the Committee that is appointed by the Prime Minister to report to him and advise him makes such recommendations, if the commissioner agrees that action is needed and is content to go along with it and if, as we understand to be the case, the agencies have no objection to the programme, why are the Government not willing to accept the amendments?

Stephen Byers (Labour, North Tyneside)

For the simple reason that we believe that the individual already has recourse to an appropriate remedy. I know that the Committee feels strongly, has made representations and has reported to the Prime Minister; no doubt it will continue to do so, under procedures established by the House. However, I consider the existing procedures to be appropriate, and I do not think that they need to be added to it in the way suggested by amendments (d) and (e). I ask the House to resist the amendments if they are put to a vote. I hope that I have been able to reassure the House in relation to Lords amendment No. 323, and amendments (a) and (b). I ask the House to support amendment (c), which discharges the undertakings that we gave in the House of Lords. I am sorry that I cannot accommodate members of the Intelligence and Security Committee in regard to amendments (d) and (e), but I believe that existing procedures in relation to judicial review are appropriate, and I do not think that the individual would be helped by the additional powers that those amendments appear to confer. For those reasons, if they are put to a vote, I shall invite the House to oppose amendments (d) and (e).

Clause 15

Stephen Byers (Labour, North Tyneside)

I beg to move, That this House agrees with the Lords in the said amendment.

Stephen Byers (Labour, North Tyneside)

I intend to concentrate on Lords amendment No. 17, which I shall ask the House to resist. Lords amendment No. 16 is a relatively minor technical amendment. It proposes that the word "subject" should be changed to "subjected", simply to ensure consistency with wording elsewhere in the legislation. I hope that it will not detain the House for too long. As I have said, I shall ask the House to disagree with Lords amendment No. 17. We believe that employers and employees should continue to have the opportunity that they have now to conclude individual contracts which differ from collective agreements that would otherwise apply to individual employees. Nothing in the Bill will affect that. However, we also believe that individuals in the workplace who refuse such contracts and choose to remain covered by collective agreements should be protected against being subjected to dismissal or detriment as a result of the refusal. There should be no obligation, and there should be no incentive, for individuals to break out of collective agreements. We do not think that someone who wishes to remain within a collective agreement should suffer detriment as a result. We therefore propose to draft regulations to achieve that policy objective. We will, of course, consult on the regulations in draft before presenting them to the House for approval under the affirmative procedure. We cannot accept the amendments tabled by the Opposition in the House of Lords. We have two main problems with Lords amendment No. 17. First, it contains a fundamental weakness, in that it confuses two separate issues: the bargaining arrangements, and action to prevent or deter trade union membership. Those are clearly two distinct issues. The amendment seeks to require section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992—the section that guarantees the right to join or not to join a trade union, and to take part in trade union activities—to be interpreted in accordance with the amendment, which has nothing to do with such matters. That is the confusion at the heart of amendment No. 17. It is concerned only with individual contracts and collective agreements. Therefore, that attempt to affect section 146 is dangerously imprecise and illogical. Although we may understand the basic thrust of the amendment, it is unhelpful in that it is extremely detailed and restrictive, and will create difficulties when we introduce our regulations. For our regulations to be effective, they need to be drawn up in a way that is not constrained by the provisions that would be introduced as a result of amendment No. 17. Therefore, I invite the House to disagree with amendment No. 17. We will introduce our own regulations. The House will have an opportunity to debate and to vote on them after we introduce them. We believe that that is an appropriate way in which to deal with the matter. We feel that amendment No. 17 creates difficulties. It does not allow the individual to have freedom. The danger is that individuals will feel, effectively, that there is a deterrent to remaining within a collective agreement. We feel that there should be freedom to make a decision, not a method by which an individual may be punished. That will be the principle of the regulations that we intend to introduce. For these to be effective, we will need the House to disagree with amendment No. 17, which was carried in the House of Lords.

Angela Browning (Conservative, Tiverton and Honiton)

I will be happy to allow speedy progress on some amendments, but not amendment No. 17. What has happened as a result of the amendment bears full examination. As the Secretary of State said, the amendment was introduced in Committee in another place by the Opposition. I go back to the beginning. Amendment No. 17 concerned continuation of the right of employees voluntarily to agree with their employer contracts that differ from those of a collective agreement that applies to them, as long as the different terms were agreed through a revised contract of employment, the employee had voluntarily accepted the new terms, and the employer's purpose in offering such terms was to further a change in his relationship with all, or any class of, his employees, as set out in section 148(3) of the Trade Union and Labour Relations (Consolidation) Act 1992. It was thought in another place that the Government supported the amendment in principle. Indeed, we were led to believe that it was Government policy, not least because we had looked carefully at the Government's White Paper "Fairness at Work", particularly paragraph 4.20, which is reinforced by annexe 1, paragraph 8. I am sure that it is engraved on the Secretary of State's heart, but let me remind him of what annexe 1 says: The terms of agreements resulting from collective bargaining are normally incorporated into individual employees' contracts either explicitly or by custom and practice and thus set the minimum terms and conditions for all employees in the bargaining unit". The annexe goes on: Under the existing law an employee and an employer can agree different terms if they wish. Since the current law works well, the Government sees no reason to change it". When the amendment was introduced in another place by my hon. Friend Baroness Miller of Hendon, there was quite a lot of discussion. It was Conservative peers who, in the absence of a Government amendment, sought to honour what they thought was a Government pledge—not least because of what is contained in the White Paper, and an indication in Committee from the Minister for Small Firms, Trade and Industry that the Government would look at the matter. Therefore, there was an expectation that, before the Bill had proceeded too far through another place, the Government would table something similar to the amendment that is now part of the Bill. 8.15 pm It is interesting to note what the Minister, as quoted in the Lords, said in respect of an employee who had refused to sign a personal contract: The employee may … think that it is unreasonable of the employer to … give the employee a pay rise, but that is the employer's right".—[Official Report, House of Lords, 16 June 1999; Vol. 602, c. 356.] We think that an employer and employee should always be free to make their own bargain, notwithstanding union recognition in the workplace. There is a need for flexibility in respect of an employer rewarding people in the workplace, based on agreements—even individual agreements—with the work force. That was what we believed the Government felt was the state of play as well, but it was not the Government who introduced the amendment; it was Baroness Miller of Hendon. After Baroness Miller of Hendon moved the amendment successfully in the Lords, a debate took place with Lord McIntosh of Haringey. He stated: I sincerely congratulate the noble Baroness both on the care which she has clearly taken in drafting the amendment and on the evident passion with which she has moved it. That seems to contradict the Secretary of State's words a moment ago, when he identified what he regarded as flaws in the drafting of the amendment. I should like him to comment specifically on why a Minister in another place congratulated Baroness Miller on the drafting of the amendment, but only a little while later, in the House of Commons, the Secretary of State said that he believed it to be flawed. I continue with the words of the Lord McIntosh: I think that I can assure her"— Baroness Miller— that we can achieve substantially the objectives which she wishes to achieve. As my noble friend Lord Simon explained in his letter of 10th May, in response to the Select Committee on Delegated Powers and Deregulation, the Government hoped to replace the power in Clause 15 with a substantive provision and we hoped to bring forward an amendment in Committee. It is thus clearly on the record that the Government, as we had anticipated, hoped to introduce such a measure, but we have received no explanation of why it was left to the Opposition—in the absence of that measure—to table successfully the amendment that we are discussing. Lord McIntosh went on: I am sorry that we have not been able to do so. but I am confident that we shall be able to produce an amendment on Report which will, in a sense, go further than that of the noble Baroness because, instead of adding to the regulatory power, which is what her amendment does, it will produce a substantive content in clause 15 instead of a purely regulatory power. So clearly, at the close of the Committee stage, although the Government had been expected to table an amendment themselves in Committee, there was a firm commitment by the Minister to bring back a substantive amendment on Report as the Bill proceeded through another place. Later, Lord McIntosh continued: I repeat our apologies that we have not been able to produce the substantive amendment which we wished to introduce in Committee. He concluded: I hope that with the assurances and details I have given about the substantive amendment which we propose to introduce on Report, the noble Baroness will realise that we intend to introduce something which is along the lines of what the noble Baroness wants". In other words, a firm ministerial commitment was given at the end of the deliberations in another place to bring the matter back on Report. Ministers acknowledged that the content of the amendment that we are discussing was not, apart from a few details, a matter of dispute. However, the Secretary of State seems now to have changed to his mind about that. It was on the basis that there was little dispute about the amendment that my noble Friend Baroness Miller was asked to withdraw the amendment. Wisely, she did not do so, but put it to a vote instead. In the same debate, Lord McCarthy, in response to what Lord McIntosh said in support of the Opposition amendment, said: Before the noble Lord sits down, I wonder whether he realises how much he is worrying some of us?"—[Official Report, House of Lords, 16 June 1999; Vol. 602, c. 359–62.] That was the first indication that not all Labour peers were happy with the Government's line. Perhaps the Secretary of State's neglect of the amendment tonight shows that the Government are responding to the concerns that have been expressed. If not, his approach is a mystery, given previous ministerial commitments about the amendment in another place. Perhaps that is why the Secretary of State has not tabled a substantive amendment for debate tonight. I believe that the Secretary of State has abused his position—and the ministerial commitments that are on record. Instead of allowing a proper and full debate this evening, he has promised that the matter will be subject to regulation at a later date. That has become a hallmark of the Government's approach. In another existence just over a year ago, I was a member of the Committee considering the School Standards and Framework Bill. The Secretary of State was then Minister of State with responsibility for school standards. It was typical of his approach then that he did not want matters to be debated in detail and pressed for a vote. He preferred to push them into the long grass, in the hope that regulation, when it was introduced, would not be given the necessary scrutiny. This important amendment certainly warrants detailed scrutiny and debate. Will the Secretary of State explain why the word of Ministers in another place can no longer be taken as a matter of honour? It is an insult to both Houses that commitments made on the record are not honoured. There is considerable interest in the matter outside the House. Business has questions to which answers must be given in this debate. For example, what is meant by the phrase "detriment by his employer"? I should be grateful if the Minister would give the House a definition. What are the Government seeking to achieve with the power that the clause gives the Secretary of State? Will the Secretary of State make a clear and unambiguous statement about the right of employees voluntarily to agree with employers contracts that differ from those under the collective agreement that applies to them? The White Paper and the Government's words both here and in another place appear to indicate that their policy was that employees had that right, but now they have performed a complete U-turn. As was said in connection with the previous group of amendments, this is the House's last chance to discuss these important matters in detail. If the comments of Lord McCarthy in another place were indicative of concern among the Labour ranks, I hope that the Secretary of State is not involved in a cynical exploitation of the democratic process. With the trade union and party conference season just a few weeks away, is the Minister hoping to avoid putting in the Bill something that the unions will not like? Employees and employers want clarification of a matter that the Minister appears to want to kick into the long grass by saying that it will be dealt with in regulation rather than in the Bill. The Secretary of State risks incurring contempt for the ministerial statements that have been made on the matter, and he will put in jeopardy the process by which hon. Members can debate amendments tabled in another place. I hope that he will explain why he has not tabled a substantive amendment to tidy up what he might perceive as flaws in the original wording. Amendment No. 17 states only that this House disagrees with the Lords in their Amendment. That is a contempt of the democratic process.

Tony Baldry (Conservative, Banbury)

In general, the Bill has not received much publicity, but this group of amendments—entitled "Detriment and dismissal; discrimination against part-time workers"—may soon attract a lot. The amendments go to the heart of the relationship between employers and employees. The White Paper is very clear. It states: As under existing law, individual employees will continue to have the right, should they wish, to agree terms with their employer. The Bill contains only a limited definition of small firms, as we shall discuss later, but many people will continue to negotiate their own contract terms. The White Paper also states: Under the existing law an employee and an employer can agree different terms if they wish. Since the current law works well, the Government see no need to change it. The Secretary of State should explain what the Government are trying to achieve with these amendments, which contradict the White Paper. I could understand the Government's approach if they considered that the amendments tabled in another place would enable employers to include discriminatory provisions in contracts to discourage trade union membership. I could understand it if the Government's aim was to ensure that people should not be pressurised not to join a union. However, why should not people be allowed to enter into contracts that they consider to be better than what they could negotiate by means of a collective agreement through a trade union? Many companies and businesses in this country offer such good terms of employment that trade union representation has never been necessary. I am fortunate in having a Quaker mother and a Quaker background. Many companies of Quaker origin, such as Cadbury, have offered such good terms that their employees have not felt it necessary to seek trade union recognition, but have made other arrangements for representation. Do the amendments mean that such arrangements will now be otiose? The amendments seem to suggest that, where there is a work force of more than 21 people, some form of collective agreement will be necessary. If so, that will lead to considerable confusion. As my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) said, what has been said in the other place and here will confuse many about the Government's policy objective. If the Government are simply trying to ensure that people should not be discriminated against because they want to be members of a trade union, that is fine. We would all understand that. But we do not understand the concept that individuals should not be free to negotiate better terms with their employer if they think that that is achievable. That seems to be a fundamental breach of an individual's opportunity freely to contract with his employer, and it is fundamentally against what the Government seem to have set out in their White Paper.

Tim Collins (Conservative, Westmorland and Lonsdale)

Conservative Members have already established that the amendments are a classic example of a typical new Labour fiasco. Initially, the Government said one thing in one place and another thing in another. They usually ensure that the places concerned are a couple of hundred miles apart. They will say one thing in a constituency by-election and an entirely different thing in London. In this instance, however, the Government have managed to say one thing at the other end of the Corridor and something entirely different at this end. Even for this Government, it is stretching the credulity of their audience a little to believe that what is said in the other place might not be compared in Hansard with what is said in this place. The Government have been caught out in a technique which I suspect they imported from their coalition partners, the Liberal Democrats, of saying different things to different audiences, but I am afraid that, in this instance, they have been caught out, and we look for a little more consistency from them. Another thing that I fear is becoming all too typical of the Government is that they find themselves in a drafting shambles, advancing arguments that clearly do not stand up. My hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) pointed out that the Secretary of State's argument that the amendments are somehow defective simply does not stand up. That is not consistent with what the noble Lord McIntosh said in the other place, and it is not consistent with any straightforward reading of the amendments. Once again, as we saw when we debated the previous group of amendments, I fear that the Government find themselves unable to accept perfectly valid and clear amendments because they seem to be determined to plough ahead regardless, no matter what the quality or source of the arguments put to them. That, again, we must regret. Then we come to what is perhaps the Government's greatest characteristic, and that is that they break their pledges. It is not simply that there has been confusion and inconsistency. As my hon. Friend the Member for Tiverton and Honiton said, what amounted to a pledge was given by a Minister in the other place—not a pledge given, in that famous phrase of a few years ago, on a wet weekend in Dudley, but a pledge given by a Minister of the Crown to one of the Chambers of this Parliament that certain amendments would be brought forward. That has not occurred. I regard that as very serious, albeit that it has become part of a characteristic pattern of this Administration. Finally we come to a modus operandi employed by the Government which I suspect they will come to regret—kicking something into the long grass in the hope that it will never come rolling out again. The Government say that all will be dealt with in regulations, that there is nothing to worry about and that employer organisations, trade unions and so on can be entirely content that all circles will be squared, that everyone will be bought off and that everyone will be happy in the end. There is the belief that if one keeps postponing the provision of detail for a sufficient number of months, no problem will ultimately arise. This is the point at which the whistle has been blown. The package has been passed around for a little while and the ticking time bomb is about to go off. The Minister has clearly not succeeded in kicking it into the long grass. My hon. Friend the Member for Tiverton and Honiton has rightly performed her duty in holding the Minister to account for the pledges made by his junior ministerial team. There may be a subtext to all this. My hon. Friend the Member for Tiverton and Honiton touched on one possible subtext, which relates to the buying off of trade union friends, and that is a point to which I may return later. But there may be another subtext, and that is that the Secretary of State may not much mind what his juniors say in another place because he knows that either they or he will move next week. In either event, he may not care too much about ministerial consistency because the present happy band of brothers and sisters at the Department of Trade and Industry may be about to be broken up and dispersed. The Government Whip on the Front Bench, who is a most distinguished and admirable member of that team, and—I hope that I do not damage his prospects—someone who thoroughly deserves promotion, may also find himself part of a different ministerial team. That may be why the Minister does not care whether he is being consistent or not. I hope that such a short-term view has not entered the Secretary of State's calculations, but one must bear in mind that this particular piece of unhappy legislation has already borne the fingerprints of no fewer than three Secretaries of State in its transition from the initial White Paper, through the wonderful spinning regime of the right hon. Member for Hartlepool (Mr. Mandelson), who tried to pretend that it was something entirely different from what it was, to the present chair of decisions at the Department of Trade and Industry, who has found it in his in-tray and fiddled around with it. We do know one thing from the press reports relating to the Government reshuffle, which may explain the Secretary of State's reaction. Whatever the fate of his junior Ministers in the other place, and whatever the fate of his Whip, it is widely expected that his junior Minister of State is likely to become the equivalent of party chairman. The party chairman must ensure that all the members of the Labour party, including the trade union funding partners, are happy. That is why the Government are resisting the amendment. I can see, Mr. Deputy Speaker, that you are following closely the way in which I am referring closely to the Government's resistance to the amendment. As my hon. Friend the Member for Tiverton and Honiton rightly pointed out, the amendment provoked unhappiness in the other place, not from any old member of the Labour Benches, but from a senior person with connections to the trade union movement. It is distinctly possible that any chairman-elect of the Labour party—as we may refer to the Minister of State—would be concerned if the trade union movement, which is instrumental in keeping the Labour party going, funding it and providing key workers in key seats, was in any way displeased. As we turn to the detail of the amendments, we should bear in mind the fact that the Secretary of State has a range of reasons, not all of them entirely above board or noble, for resisting the text before us. That text is clear. The Secretary of State claimed earlier that it was an attempt to spatchcock two different concepts together and that the Bill was the wrong place for it. In fact, it defines, at least in part, the "detriment" identified in clause 15(1). It is an important clarificatory measure. We must be clear what is and is not "detriment". I hear a nasty echo of some famous—indeed notorious—remarks made a few years ago by Roy Hattersley, then the Labour party's deputy leader. In The Guardian, he wrote that the Labour Party was not the party of equality of opportunity. That, he wrote, was the Tory party, while the Labour party was the party of equality of outcome. If that is the attitude of the Labour party, and one must assume that a former deputy leader knows something about his party's instincts, one can see why Labour Members do not like the amendment. It would permit someone who was not a member of a trade union to earn more than someone who was. Labour wants a wonderful world—wonderful in Labour's terms, though not in anyone else's—in which everyone who works for a specific employer is paid exactly the same. No matter how hard they work, how successful they are, how many bonuses they earn or how much they contribute to the company, they will receive no more money. That chimes with the Secretary of State's recent attack on so-called fat cats, another indication of the Government's egalitarian instincts. They are opposed to the idea of having different pay for different skills, aptitude or effort. Serious concern exists that they are seeking to impose a model on our industrial relations that clearly would not work. Socialism in all its forms has failed, particularly the state socialism of eastern Europe. The incentive principle, which lies at the heart of the amendment, is the reason why socialism will never work. Socialism prescribes equality, even where it does not exist. We stand for equality of opportunity—the then Mr. Hattersley was entirely right about that. Sadly, Labour stands for equality of outcome, and that is a very different proposition. The powerful case made by my hon. Friend the Member for Tiverton and Honiton has not been properly addressed by the Government. We want to know their answers to her points. In particular, why does the Secretary of State say something different in the House of Commons from what another Minister said in the House of Lords barely five weeks ago? I wait with bated breath for his reply.

Robert Syms (Conservative, Poole)

I support what the noble Lords have done. Baroness Miller's remarks concluded: By compelling an employee to accept a collective bargain against his will and in that way increase the power of the union over him, the Government are attempting to reintroduce the closed shop by the back door. I repeat that this would reintroduce the closed shop by the back door. That is something which the Labour Party promised it would not do. This amendment simply ensures that workers enjoy one of the most fundamental of employment rights; namely, to negotiate their own individual pay if they can strike a better bargain with their employer, possibly by being more flexible than an entrenched egalitarian position of a trade union."—[Official Report, House of Lords, 16 June 1999; Vol. 602, c. 357.] The key point is the meaning of "detriment". The Lords amendment broadens the definition, allowing people a much clearer idea of whether it means "difference". Workers have to be flexible today, and although the amendment does not undermine anyone's right to be a member of a trade union and accept the benefits that flow from membership, some workers, perhaps because of the hours they work or the skills they have, are in a good position to negotiate their own terms and conditions. The amendment allows our economy to be flexible, and allows individual workers with particular skills to take the best advantage of that. My concern is with the meaning of "detriment", and whether it means difference or allows trade unions to level down rather than up. Will individuals with particular skills be able to bargain through the market to achieve the maximum benefits?

Stephen Byers (Labour, North Tyneside)

This has been an interesting debate; I shall try to reply to the points made by Opposition Members. For the benefit of the House, I point out that the Government voted against amendment No. 17 in the House of Lords—a good demonstration that we did not accept its content. That is why we opposed it, and gave the clearest possible expression of our reservations about it. However, the reason for the views expressed by my noble Friends lies in the principle that we all share; it underpins the comments made by Baroness Miller and I restated it at the beginning of the debate. The principle is simply that employers should remain free to offer more pay or to improve benefits to individual employees; even though there may be a collective agreement, employers will have that freedom. That is what I believe in, and it will be ensured by the regulations that we shall introduce in the House—which can be debated and voted on. There is no disagreement about the principle that underpins our consideration of these matters. However, we do not accept the previous Conservative Government's view that individuals should be penalised because they choose to belong to a trade union, and to be part of a collective agreement. The previous Government endorsed and supported that view; the regulations that we shall introduce will allow individuals freedom of contract, but will ensure that people will not be penalised or suffer detriment because they belong to a trade union.

Angela Browning (Conservative, Tiverton and Honiton)

If those were Secretary of State's concerns, why was the amendment not brought back to this place in a modified form on Report? Later, on Third Reading, the Government made a slight alteration on the grounds that the amendment needed a grammatical change. Why was it not substantively changed—as was promised by Lord McIntosh? We share the Secretary of State's concern about the rights of trade union members, but there was nothing to stop him from tabling on Report the substantive amendment that was promised in another place.

Stephen Byers (Labour, North Tyneside)

We are talking to interested parties about the detail of the regulations. I would rather do that in order to get the regulations right. Those regulations will be supported by business. People will realise that they carry the debate forward appropriately. I realise that Opposition Members find that hard to understand; they do not understand the concept of consultation—of discussing with business what might be suitable or appropriate. We believe in consultation and that, as a result of it, the regulations that we shall introduce will be all the better. [Interruption.] I know that it is difficult for Opposition Members to understand that, but that is what will happen. We heard a great deal about what is meant by detriment. I knew it was a mistake to use the same approach as that adopted by the previous Government in their Employment Rights Act 1996. Detriment was referred to, but no precise definition was given. We have adopted exactly the same approach. We are talking about introducing regulations that will do away with one of the great injustices promoted by the previous Government: that because people chose to belong to a trade union, their employer should be able to discriminate against them. We do not accept that approach. We believe that amendment No. 17, supported by the Conservatives in the House of Lords, will make it difficult to ensure that we can remove that discrimination. We believe that individuals should have the freedom to be paid more by their employer if the employer agrees, but that should not be based on penalising trade union members. We know that that is the Opposition's motive because, during their years in government, they did nothing to change matters; they did nothing to oppose discrimination against trade union members. I invite the House to disagree with amendment No. 17 carried in the House of Lords. We believe in fairness, not favours; we believe that the Government are for all the people, not just for a few. That is why we shall resist the amendment. We shall ensure that there will not be discrimination against trade union members.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I remind the House that we are dealing first with Lords amendment No. 16.

New Clause

Stephen Byers (Labour, North Tyneside)

I beg to move, That this House agrees with the Lords in the said amendment.

Stephen Byers (Labour, North Tyneside)

I hope that the House will support the amendments, which reflect marked common sense on the part of the Government in dealing with these important matters. Amendment No. 20 deals with what are known as intentional communities, which are communities in which people effectively volunteer. They are often religious-based and have shared living accommodation. The people concerned have a common religious or spiritual aim. They are in a unique position. We received a number of representations from such groups when they saw the details of our provisions in relation to the national minimum wage. We have used the opportunity to consider those representations, and as a result have come to the conclusion, with which I hope this House will agree, that we should exclude intentional communities from the provisions of the National Minimum Wage Act 1998. The communities, religious orders and individuals concerned have welcomed the measure. They recognise that the commitment and devotion that goes with such a life style was not intended to be affected by the National Minimum Wage Act. Only about 1,000 people are affected and, in the circumstances, we think that the provision is wholly appropriate. Lords amendment No. 25 would allow information to be given to Inland Revenue enforcement officers to ensure effective enforcement of the National Minimum Wage Act, but in a way that does not create an undue burden on business. I hope that that will commend it to Opposition Members.

John Healey (Labour, Wentworth)

My right hon. Friend will be aware that one of the successful aspects of the implementation of the minimum wage is the use of the hotline by employers to report other employers who may be paying below the minimum wage. Understandably, and rightly, they are keen not to be undercut by cowboys who misuse the law. Will he confirm whether the new clause that Lords amendment No. 25 would introduce would allow Inland Revenue officers who are alerted to such malpractice by an employer to pass on that information to enforcement officers, reinforcing the application and implementation of the minimum wage?

Stephen Byers (Labour, North Tyneside)

The areas covered by Lords amendment No. 25 would allow the Inland Revenue to pass to enforcement officers information that it received during the course of discharging its responsibilities. So, provided that they were the circumstances in which the information was received, it would be passed on. I should explain the practicalities of the operation of the present system. We would expect that the sort of information that we are receiving from employers through the hotline would go to the dedicated enforcement team and not to the normal Inland Revenue personnel. Therefore, the situation that my hon. Friend described is unlikely to arise. It is worth noting that there have been something like 1,900 references to the telephone hotline because of people who, allegedly, were not paying the national minimum wage, and we have been able to deal with many of them. The number of employers who have been ringing up to inform the enforcement authorities about other employers who are not paying the national minimum wage has surprised many of us. As we said when we took the Bill through the House, there is much resentment among employers who are paying a reasonable wage when they know that they are being undercut by the actions of other employers. Lords amendment No. 25 is sensible, it would cut bureaucracy for business and would be provide a very effective way of enforcing the national minimum wage legislation. I hope that it will commend itself to the House.

Angela Browning (Conservative, Tiverton and Honiton)

I do not oppose Lords amendment No. 20 in principle. However, I have recognised an anomaly in its wording, which could lead to the proposed clause affecting a group of people which the Secretary of State had not intended to affect. I shall talk him through such a situation in order to gain his reassurance that such an organisational group of people should not, for reasons that I shall explain, come within the scope of the clause. Paragraph 2(b) of Lords amendment No. 20 says: a purpose of the community is to practise or advance a belief of a religious or similar nature". It is the words "similar nature" that worry me. The community is either of a religious background or it is not. If it is not, but the wording "similar nature" is to apply in law—bearing in mind the fact that the other condition in the subsection requires the organisation to be an established charity or established by a charity—there is a group of people who might meet the definition in the clause who would give me cause for concern. Some environmental charities fund groups of people, sometimes over quite a sustained period, so that the group may become a formalised protest group in a specific location. A group of road protesters might be funded by a charitable organisation, so they would meet the definition in paragraph 2(a) of the new clause, and might be regarded as being of a "religious or similar nature" under paragraph 2(b). They would not necessarily be drawing benefits, but their day-to-day living expenses would be funded by the charity. I can think of a situation that occurred in my constituency, where such a group of people—

John Battle (Labour, Leeds West)

Swampy.

Angela Browning (Conservative, Tiverton and Honiton)

I did indeed have the great pleasure of Swampy on my roof when some people set up their community—or a group of a "similar nature"—near my home some years ago. The general public often think—sometimes rightly—that such groupings of people are simply drawing benefit. That is not always the case. Some do, but not all. Those who do not sustain their day-to-day living expenses by benefit are obviously being funded, sometimes by bona fide charity moneys that reach them. None the less they would, in effect, be being paid for their living expenses, and could well be below the minimum wage. I do not want to give the Secretary of State false hope tonight because I do not want him to think that I am making a case for the minimum wage. I am not. I am simply suggesting to him a scenario in which a group of people might well come within the terms of the new clause simply because of the way that it is worded. The charitable condition would be met, and who is to distinguish between different groups of people who opt to live together in a community? If the full stop is not to be placed after the words practise or advance a belief of a religious nature", the words "similar nature" could be interpreted as applying to people who share a common belief, regardless of whether that is of a religious nature. I am trying to help the Secretary of State here. I caution him to look very carefully at how the wording of paragraph (2)(b) might be interpreted in law, and might give sustenance to a group of people of whom he may or may not approve—I do not know—who could pray in aid this part of his legislation to use it for a purpose other than that for which it was intended. I should have thought that clarification of "or similar nature" and the difference between a belief of a religious nature and a belief of a similar nature turns on the head of a pin, but I should be very interested to know how the Secretary of State and his officials interpret those words.

Peter Luff (Conservative, Mid Worcestershire)

I am genuinely intrigued to know the reasons that have driven the Government to allow this exemption from what is, for them, a very important piece of legislation. The Secretary of State said that only about 1,000 people would be affected by the provision; it would very much help the House to know exactly what type of people they are. I have suggested to the Government several times that other exemptions should be made from the national minimum wage legislation. It would be intriguing to know—and it is very important that the House should know before it passes this exemption—what has driven the Secretary of State to accept the logic for this group. In the past, I have advanced a proposition entirely commensurate with the spirit that underlies what I think is a commendable amendment. It is that quasi volunteers who involve themselves in pre-school playgroups think that they should be exempted from minimum wage legislation. These are people who share a common belief about the value of education. They do not live together but they are often people who do not want the money that comes from their work. They have the reward of enjoying the fulfilment that comes from helping young people to develop their skills. Yet the Government have robustly rejected the view that these quasi volunteers should be excluded from the minimum wage legislation. 9.15 pm I have a high regard for religious communities. In the past, I have been on retreat on many occasions to religious communities, mainly in France. I do not recall having done so in this country. That being so, I do not want to undermine the importance of the exemption. I want to know why the Government have been moved to accept the amendment, which excludes religious communities from minimum wage legislation when there are so many other groups that could argue with equal legitimacy that the cause they espouse and the views and beliefs that they hold about the value of education—for example, pre-school playgroups—are as valid as the religious beliefs held by communities. The first question that the Secretary of State must answer is why a particular group has been singled out for what seems to be a reasonable exclusion. I would like to know also from the Secretary of State exactly what type of person is affected. He talked of about 1,000 people. These are presumably not the nuns and monks of religious communities and their opposite numbers. They are the—[Interruption.] The Minister said something from a sedentary position and I could not hear what he said. If he genuinely wants to intervene, I shall find it helpful to have clarification. I am wondering about gardeners, cooks and groundsmen at communities, for example. If they are included, that is fine. Who is the employee? I do not know how the law operates in this respect. We are not dealing with limited liability companies, particularly when talking about religious communities. Apparently, communities will have to have charitable status. Employment by the community is clearly important. I would be interested to know whether the Secretary of State has received any representations from communities that think that they should be caught by the exemption but that do not qualify for charitable status. I am particularly worried about clause 2(b), which states: a purpose of the community is to practise or advance a belief of a religious or similar nature". I take up what my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) said from the Opposition Front Bench about environmental groups. If the amendment were genuinely providing an exemption for religious communities, "the principal purpose" and not "a purpose" should be in the Bill. I share all the reservations that have already been expressed about "or similar nature", which flows after religious beliefs. This opens a Pandora's box for not only legitimate religious groups from the Roman Catholic and the Anglican monastic traditions, which I assume will be the principal beneficiaries of the exemption, but for all sorts of dubious religious cults, whose practices I do not think we would want to condone. Often such cults have a community for the practising or the advancing of a belief of a religious or similar nature". The phrase "or similar nature" takes a particular salience because the rather dubious religious cults, on which I am sure the Government have a wary eye, as did the previous Conservative Government, often have much more money than the Anglican and Roman Catholic communities and other religious communities that are entirely properly being exempted under the Bill. It would seem that cults may be capable of abusing the spirit of the national minimum wage legislation. They have much more resources at their disposal than the Anglican and Roman Catholic communities and many more employees. I am concerned that the amendment may be opening the door not to 1,000 exemptions but many more from the national minimum wage legislation.

Tim Collins (Conservative, Westmorland and Lonsdale)

I understand what my hon. Friend is saying about the potential danger of including cults. Is not that danger reinforced by the fact that many cults try to tell those who fall within their embrace that they are entering a completely different world from the outside world and that they must cut off all contact with it? Exemption from important statutory provisions will only reinforce that sense of being apart from the rest of the world.

Peter Luff (Conservative, Mid Worcestershire)

My hon. Friend makes a powerful point. I appreciate that, by definition, volunteers cannot be caught by national minimum wage legislation—at least, I hope they cannot—but those who are at the penumbra of such cults, who are employed in some sense by that bigger community, may indeed fall victim to the situation that my hon. Friend describes. We need to know much more from the Secretary of State about those 1,000 people who he says will be exempted by the measure, welcome though it is in principle. Subsection (2)(c) states that all or some of its members live together for that purpose. That is exceptionally loose drafting. What, in law, does "some" constitute? Is it a half, a quarter, a third, a fifth, two or three? How many does "some" constitute for this purpose? There is huge scope for creative abuse of the exemption. I say again that I am not a huge fan of the national minimum wage legislation. Good employers should pay a decent wage, and I condemn those who do not. The Government have no business meddling. I oppose such legislation, and I resent being told when I oppose it that I am not part of the new one-nation strain of new Labourism. However, if we are to have legislation, it must be good legislation. It must not be open to abuse. There is nothing hypocritical in the Opposition saying that we oppose legislation, but, if it is to be introduced, it must work. I worry that the loose definitions that feature in amendment No. 20 could open the Government's legislation to considerable abuse. I imagine that the exemption in subsection (3)(a)— This section does not apply to a community which— (a) is an independent school"— is intended to exempt communities such as Ampleforth. Clearly, where there is large-scale employment of teachers, it is reasonable for the Government to make such an exemption, but I would welcome clarification of that. I go back to my opening remarks. If we are exempting independent schools, I want to know why we are not exempting other categories, particularly the pre-school play groups, which have a common belief and value education. The people who work for them do so not primarily for the money, but for the joy of bringing up children. If the Government are prepared to make an exemption for religious communities—which may be right, subject to the caveats that I have entered—why are they not prepared to consider exemptions for other communities which may not be residential, but have a shared belief and are essentially voluntary in nature?

David Chidgey (Liberal Democrat, Eastleigh)

I return to the Secretary of State's opening remarks, which seem to have been made quite a long while ago. He mentioned that he had listened carefully to the arguments advanced by a number of groups. He is right. In Committee, there was a great deal of discussion and debate about the exemptions for particular groups which, because of their religious principles, could not continue to organise themselves and the way in which they worked if the law was passed and affected them. Much of that discussion took place during the debate on employment relations and trade union recognition. Can the Minister tell me—I may have missed it in my reading of the Lords amendments—what has happened to the plea from those groups that they should be exempted from trade union recognition? As I recall, that was one of their principal problems. With their fundamental belief in the Old Testament, which they quoted to many of us, they could not operate their workshops if they had to allow trade union recognition ballots to take place. They could not do that and hold true to their beliefs. If I recall correctly, the Minister of State said at the time that there would be further discussion and clarification, and that regulations would be produced in due course to address the issue. I am a little surprised to see a Lords amendment dealing with the national minimum wage, but no mention of the problem of trade union recognition. I should be grateful if the Secretary of State could advise me of the progress that has been made in the negotiations and when we can expect regulations or legislation to satisfy the genuine concerns of those groups.

Robert Syms (Conservative, Poole)

I shall echo a few of the comments of my hon. Friend the Member for Mid-Worcestershire (Mr. Luff), who made a persuasive case. Conservative Members do not support the minimum wage, but we support good employment practices and, because other groups are not being exempted, we believe that exempting particular groups in such a way is fiddling. I believe that most of us have concerns about that matter. In the summer, I visited a pre-school playgroup in Newtown in my constituency that had made two helpers redundant. The employers felt very sad about doing that because, although those helpers were not paid a great deal, they did not qualify for the minimum wage. Why should people who work in pre-school playgroups be considered to be less worthy than members of some of those other groups? I am not sure. The Secretary of State said that the amendment will affect 1,000 people, but I think that we need to hear a little more about how the Government arrived at that figure and who those people are. The drafting is a little wide and proposed subsection (2)(a) refers to a community that is a charity or is established by a charity". I am not worried about the charity aspect, because the Charity Commissioners apply pretty stringent standards, but the term "established by a charity" is rather unclear and I have concerns about it. Proposed subsection (2)(b) states: a purpose of the community is to practise or advance a belief of a religious or similar nature". There is a problem with the term "a purpose". If the term "the purpose" had been used, the drafting would have been better and the provision would have been rather more specific. I am also concerned about the term "similar nature", which is ill defined. Religion covers a pretty broad area, but most of us would agree about what is and is not a religion. The term "similar nature" is rather more nebulous, however, and I am not sure that we would all agree about what it means. We in Poole have had experience of cults. Some of them profess to be religions and to have particular spiritual values, but I am not sure that most of my constituents would want them to be treated in the same way as reputable religious orders, particularly because some cults have bad reputations in communities such as Poole. Proposed subsection (2)(c) refers to all or some of its members living "together for that purpose." Again, the drafting has been widely drawn and the measure should be rather more specific. Does that term mean a household or a very small proportion of the membership of a particular organisation? We need a little more specific information from those on the Treasury Bench about whom the measure will help. We are discussing religious communities and we know that people have deeply held beliefs. One would welcome the measure in principle, but it has been widely drafted and one is concerned that, although its objective is worthy, organisations that are not worthy of that objective will make use of it. As my hon. Friend the Member for Mid-Worcestershire said, why should some groups be able to use the "similar aspects" provision in order to be considered more worthy than pre-school playgroups or other bodies that contribute to communities in my constituency and in many others? Those bodies do a very good job, but, although they do a great deal for young children, they are not exempt from the legislation. They will suffer under it and I want clarification from Ministers.

Robert Key (Conservative, Salisbury)

I have been wondering whether I should declare any interests before contributing to the debate and I think that I should declare two, neither of which is pecuniary: the first is that I am the Member of Parliament for Stonehenge; the second is that I am an adviser to the Almshouse Association. Thousands of people in this country live in almshouses of ancient foundations. Many of those foundations are religious—notably Christian—and such people live in communities to which a number of special exemptions apply—in respect of television licences for particular categories of people, for example. That is a bona fide reason why the association should benefit from certain legislative proposals that come before the House from time to time. Nevertheless, I have great trouble when discussing things "of a … similar nature" to almshouses. It is astonishing that the House should be asked even to consider that wording without a proper explanation of what is meant. I am seriously wondering whether to support the amendment. 9.30 pm The Almshouse Association represents more than 1,000 almshouses, which have been established down the years. It cares for thousands of people, thus saving the taxpayer and the state enormous cost. We should be grateful for that. In recent years, there have been a number of cases in which the almshouses have not been sure whether they should be regarded as religious or non-religious, communities or not communities. This wording would allow another confusion to creep in. The almshouses employ carers, cleaners and cooks. My hon. Friend the Member for Macclesfield (Mr. Winterton) is particularly knowledgeable about this subject and would have wished to take part in this debate if only I had managed to contact him in time. Were he here, he would agree with every word that I have said. When it comes to these exemptions, the question whether a community advances a belief of a religious or similar nature is extremely important. Therefore, the Almshouse Association has a legitimate interest in knowing exactly what is meant by that wording. I doubt whether it could tell from the provision before us.

Angela Browning (Conservative, Tiverton and Honiton)

Is not this problem caused by the fact that a flaw in the drafting of the Government's minimum wage legislation calls into question a range of payments that we would normally have regarded as honorariums? People for whom some reward is given, but for whom no exceptional circumstances are provided, suddenly fall foul of the legislation.

Robert Key (Conservative, Salisbury)

My hon. Friend is right, and countless examples could back up her case. That is just part of my concern about the amendment. I shall now deal with Stonehenge. Some may feel that this is not a serious issue; I assure them, that for my constituents, it is extremely serious. We have seen what happened there recently. A large number of people, who regard themselves as a community and who practise a belief of a religious nature, were denied access to the summer solstice at the stones by others who thought that they had what might be called "a similar nature" approach to the problem. There was a battle in which, unfortunately, the police had to hold both groups apart and maintain public order in the process. Although we may not think that the druids have a serious religion, they think so, and we live in a tolerant society that should acknowledge that they have the right to that belief. Only yesterday, I was with the arch druid of Stonehenge, with the Secretary of State for Culture, Media and Sport and the chairman of English Heritage, discussing the future of Stonehenge and the appropriateness of the Stonehenge landscape for events to celebrate the millennium.

Robert Key (Conservative, Salisbury)

The national minimum wage is of fundamental importance to the issue because, at the height of the troubles at Stonehenge 15 years ago, there was a great deal of employment, which was based on the occupation of land owned by the National Trust or managed by English Heritage on behalf of the Government and the nation. There is concern that, at the millennium solstice, as you will see, Mr. Deputy Speaker, next time you push the right buttons on your personal computer, the biggest rave ever is to take place at Stonehenge. Tens of thousands of people across the country may want to come to Stonehenge. The last time that happened, hundreds of people were involved in trading at Stonehenge, in association with a number of cults that thought they were religions. They were concerned that there should be a proper market price for their products. I saw what was on sale. The hell's angels were in control of the sale of alcohol.

Robert Key (Conservative, Salisbury)

I shall do so, Mr. Deputy Speaker. In those days, there was no national minimum wage, but now there is. Will the people gathering at Stonehenge for the millennium or on the ninth day of the ninth month of the 99th year, for the winter solstice or the spring equinox, let alone for next year's summer solstice, be subject to the minimum wage when they trade in alcohol or food on the site at Stonehenge? This is of great importance. The amendment is unclear. What does it mean by of a religious or similar nature"? Not only do the druids think that they are a religion, but so do other people who regularly descend on my constituents, such as the hell's angels, Swampy and friends or whoever. If they are law-abiding members of the community, that is fine by us. However, we have enough trouble with the Wiltshire constabulary having to enforce the laws on public order. What is the chief constable of Wiltshire to do when it comes to enforcing the national minimum wage at the stones?

Robert Key (Conservative, Salisbury)

I should be delighted to draw my remarks to a close, Mr. Deputy Speaker. I question the purpose of the amendment. I ask Ministers seriously to address this issue. My predecessor, Sir Michael Hamilton, regularly stood up in the House and was gently chided, perhaps mocked, for drawing attention to the problems each year at Stonehenge, which always made the national headlines during the summer solstice. Eventually, someone saw what was going on down there—people were being killed and murdered—and the House came to its senses and passed the required legislation. I am grateful to you, Mr. Deputy Speaker, for your forbearance in hearing me out. The amendment will do no good for real people in real communities. We may think that we are legislating for completely rational, legally minded people, but lawyers and courts will have to interpret the legislation, and the police will have to decide how to enforce it on the ground in the height of summer, among serried ranks of people with conflicting religious beliefs. That is not fair. We must get answers to the questions that I have raised.

Tim Collins (Conservative, Westmorland and Lonsdale)

I shall be brief, but I should like to make some important points. I join my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) in welcoming the fact that the Government have introduced the proposals for exemptions. However, it is not that long since the National Minimum Wage Act 1998 was passed. At the time of its passage, Conservative Members warned the then Secretary of State that the Government would need a general power to exempt some categories of persons and activities from the national minimum wage. That idea was pooh-poohed by Labour Members. This is the second time in barely a year that the Government have had the chance to introduce special legislation to exempt categories of people from the national minimum wage. First it was au pairs, and now it is workers in residence in religious communities. The hon. Member for Eastleigh (Mr. Chidgey) asked about religious communities, and the position of those who have sought exemption from the requirement for trade union recognition. The hon. Gentleman and I served on the Standing Committee that considered the relevant parts of the Bill, which related in particular to those who describe themselves as members of the Plymouth Brethren. I suspect that the Secretary of State will say that they would not fall into the categories specified by the amendment, because most of those who work for the Plymouth Brethren are not residential members of the community. Nevertheless, I feel that the hon. Member for Eastleigh has identified an important issue of principle.

David Chidgey (Liberal Democrat, Eastleigh)

The amendment says that "some" can be residents. Does that not cover such people?

Tim Collins (Conservative, Westmorland and Lonsdale)

The hon. Gentleman is right, but I really want to deal with what I consider to be the heart of the point that he was making. We are dealing with an issue of principle. In Committee, the Minister of State was quite generous, expressing a strong commitment to people's right to follow their religious beliefs. However, he said that it was wrong for those religious beliefs to remove the rights of employees. It was on that basis that the Government rejected the amendments relating to the Plymouth Brethren, tabled by my hon. Friends the Members for Buckingham (Mr. Bercow) and for North Shropshire (Mr. Paterson). If that principle applies across the board—not least in other parts of the Bill—surely it ought to apply in this case. What is sauce for the goose is sauce for the gander. If the Government recognise that there are religious grounds on which exemptions should be made—and I welcome any such recognition—why, as the hon. Member for Eastleigh has said, should that not apply to trade union recognition? If the Government now believe that religious considerations provide legitimate grounds for the changing of employment rights, why does that not apply throughout the Bill? The Government may say that the issue involves not just religious issues, but the residential members of the community who are mentioned in new section 44A(1). The residential principle is at heart here. I agree with what my hon. Friend the Member for Mid-Worcestershire said about certain groups—including, perhaps, the Pre-School Learning Alliance—but I think particularly of people in my constituency. I think of the secretary of the national training centre of the YMCA at Lakeside in my constituency, on the shores of Lake Windermere, who wants residential training courses there to be exempted from the national minimum wage provisions. I also think of Mr. Michael Berry, proprietor and managing director of the excellent English Lakes hotel chain in my constituency, who says that the provisions do not take enough account of the fact that most employees in the tourist industry are provided with residential accommodation. That ought to be considered in the assessment of their eligibility for the national minimum wage, and the amount that they receive. I want the Secretary of State to explain the principles that apply. If there are to be religious exemptions, why do they not apply elsewhere? If there are to be residential exemptions, why do they not apply elsewhere? If the Government are simply acting in response to popular pressure, will the Secretary of State please listen to some of the points made by the Pre-School Learning Alliance, and by others who feel that the Government's actions, although doubtless embarked on with the best of motives, will have damaging consequences?

Stephen Byers (Labour, North Tyneside)

Although a number of the points that have been made touched on the amendment, a much larger number did not. I shall confine my remarks to those that are relevant to it. I know that the question of the Plymouth Brethren concerns hon. Members. We have engaged in continuing discussions with the Brethren about their circumstances. My noble Friend Lord Simon met members of the organisation last week, and they are now writing to him about their concerns. We will continue that dialogue, but it will not dilute the general principle that we have pursued. We believe that individuals should have a right to trade union membership if they feel that it is appropriate, and that there should be a right to trade union recognition and representation when that is appropriate. Nevertheless, there may be opportunities for us to meet the legitimate concerns of the Brethren, and we are discussing with them how that might be achieved. 9.45 pm For the benefit of hon. Members, I make the position clear. The minimum wage does not apply to volunteers, to nuns or to monks; they are exempt from the National Minimum Wage Act 1998. When the issue was debated in both Houses in the context of the national minimum wage, most people felt that intentional communities would not be considered as workers within the definition of the Act. What people were unaware of at the time was that individuals in intentional communities are often given employment contracts as best practice. Although, in the classic definition, they are not employees, they are given contracts of employment because that is regarded as best practice, so they fall within the definition of the Act. Lords amendment No. 20 focuses particularly on those with a religious ethos who are resident. To qualify for exemption, the community must be a charity, or founded by a charity and—as hon. Members have said—all or some of the members must reside together for the purpose of practising or advancing a belief of "a religious or similar nature". I will talk about "religious or similar nature" because it has been dwelt on by several Members. Examples of the type of communities that will be covered by amendment No. 20 are the Iona Community, the Society of Mary and Martha, the Community for Reconciliation and the Quiet Waters Christian retreat house. The amendment has been drawn up in consultation with those bodies. There is, effectively, a network of intentional communities in the United Kingdom. We were conscious that it was an identifiable group. We took the view that it could be exempt from the National Minimum Wage Act. I reassure hon. Members: the protesters whom we have heard about would not come within the definition. The reason is that, when a court considers the interpretation of "religious or similar nature", it will apply a rule of statutory interpretation which is known as the ejusdem generis rule, which means that the general comment about "similar" will be restricted to the specific, which is religious. I am sure that the hon. Member for Salisbury (Mr. Key) was aware of that rule of statutory interpretation. Therefore, the reference to "similar nature" will be constrained by the use of the word "religious". In the context of those assurances, I hope that we can make progress. A number of issues have been raised by hon. Members. The hon. Member for Mid-Worcestershire (Mr. Luff) had concerns about the wording: all or some of its members live together". In that context, "some" means more than one. Although we talk about all living together, there will be circumstances in which 50 people may be engaged, but only 35 are living together, so that definition of "some" has been used. In that context, those 35 will be the ones who come within the provisions of the exemption to which I have referred and which is being dealt with by amendment No. 20. I enjoyed what the hon. Member for Westmorland and Lonsdale (Mr. Collins) said. I have visited many of the places that he mentioned on many weekends. I thought of the shores of Lake Windermere with great affection. It is a wonderful place to go on holiday. I commend it to many Members; it is something that I am sure we could all enjoy.

John Battle (Labour, Leeds West)

We could form an intentional community.

Stephen Byers (Labour, North Tyneside)

I am not sure that we would be able to form an intentional community within the context of the amendment, but the opportunity and the chance of doing so may be interesting. The specific point raised by the hon. Member for Westmorland and Lonsdale was in relation to living-in costs. They often arise in the hospitality and hotel industry, where people work as chamber maids or porters, but have their accommodation provided. The National Minimum Wage Act considered that aspect and agreed an effective disregard; I think that it was for living-in costs of £19.50. However, it is capped at that level. Concerns have been expressed that that is artificially low for people in the hotel and catering industry, and for people in London, where £19.50 is considered to be a relatively small amount. One of the reasons for the Government's retention of the Low Pay Commission was so that it could examine the detail of issues such as that. As part of its on-going work, the commission is looking at the costs of living-in accommodation, to see whether the amount is pitched at the correct level. The commission intends to report to me just before December on a range of matters, and I am sure that the question of living-in accommodation will be one of the issues to which it will return. Indeed, it has already made it clear that it is taking evidence on the matter. A number of groups have made strong representations about the matter, and I am sure that it will feature in the Low Pay Commission's report. I said that a number of groups, such as volunteers, nuns and monks, are exempt. The hon. Member for Tiverton and Honiton (Mrs. Browning) was worried about protesters benefiting from the provision. I hope that I have been able to explain that they would not be covered by the details of the amendment. All that would happen is that they would not receive the benefits of the national minimum wage. I am not sure that Swampy could have been regarded as an employee when he was on the hon. Lady's roof. I doubt that he would have qualified for the national minimum wage, and I do not think that the hon. Lady was keen for him to be entitled to it.

Angela Browning (Conservative, Tiverton and Honiton)

Certainly not.

Stephen Byers (Labour, North Tyneside)

I followed with interest the hon. Lady's argument, but I could not identify the problem that she was trying to tackle in her example. I do not believe that protesters are covered by the provisions of the amendment. If they were, however, the amendment would mean simply that Swampy and his friends would not be entitled to the national minimum wage.

Angela Browning (Conservative, Tiverton and Honiton)

My concern was that not all protesters who are unemployed claim benefit, but instead receive some remuneration, sometimes from charitable donations. Under the amendment, they could be regarded as a community with a common cause and, because the amendment is so loosely worded, such a community need not be religious.

Stephen Byers (Labour, North Tyneside)

I understand that concern, but I do not think that it need trouble the hon. Lady. The important thing to remember is that such people have to be residents of intentional communities, sharing living accommodation and tasks with the purpose of advancing a common religious or spiritual aim.

Alan Duncan (Conservative, Rutland and Melton)

The Secretary of State is talking about us.

Stephen Byers (Labour, North Tyneside)

I am very tempted to go down that road, but I shall resist doing so, because the hon. Gentleman was referring to a very selective sect. The basic requirement for classification as an intentional community is that the community provides meals and accommodation. Residential members of such communities often also receive small sums. Some communities treat their residential members as workers, issuing them with contracts of employment. That is the key difference from the example given by the hon. Member for Tiverton and Honiton. As part of best practice, intentional communities consider it appropriate to issue members with contracts of employment, even though there is no legal obligation to do so. The hon. Member for Salisbury spoke about Stonehenge so eloquently that I am sure that many hon. Members will want to visit. I was trying to recall whether the monument could be regarded as residential accommodation.

Robert Key (Conservative, Salisbury)

indicated assent.

Stephen Byers (Labour, North Tyneside)

The hon. Gentleman clearly knows the area far better than I do.

Peter Brooke (Conservative, Cities of London and Westminster)

In the light of the Secretary of State's residential observation, is he aware of the Frank Muir spoof, which one used to be able to listen to on British Airways flights to the United States? Frank Muir was conducting an interview between the editor of The Architectural Review and a cave man about the architectural development of the henge, in which the cave man said that he did not think that henges would catch on because they were much too draughty.

Stephen Byers (Labour, North Tyneside)

That may explain a lot about our history. I thought that the right hon. Gentleman was about to give an example from "The Goon Show"—

Stephen Byers (Labour, North Tyneside)

I was thinking of the episode involving the Spitfire test pilot where there was banging on the cockpit. I had better not go any further. I wanted to address the serious points about Stonehenge and residential accommodation, and I know that the House is waiting for my response on behalf of the Government on the important point concerning the druids. Before I come to that, I note that the hon. Member for Salisbury asked about almshouses and their staff. Staff, such as cooks and cleaners, who work in almshouses are working for the Almshouse Association and, as such, are not required to share a common religious belief or to live together in shared accommodation. Therefore, they would not be covered by amendment No. 20 which has been agreed by the other place, so they would not be exempt from the National Minimum Wage Act. Druids, as I understand it, are not a registered charity. Therefore, for the reasons that have been referred to, they do not come within the definition to which amendment No. 20 relates. If they did become a charity and moved into shared accommodation for the purpose of advancing the druid movement, they might be exempt from the national minimum wage, but—this is the important point—anyone who worked for them would be entitled to receive the national minimum wage and would not be covered by amendment No. 20. Both amendments are significant. We have discussed amendment No. 20 at some length and I hope that I have answered the concerns of all hon. Members. Amendment No. 25 is particularly important because it is an effective way of enforcing the national minimum wage legislation. For those reasons, I invite the House to agree to amendment No. 20.