Standing Committee D
Thursday 29 January 1998
(Afternoon)
[Part II]
[Mrs. Gwyneth Dunwoody in the Chair]
[Continuation from column 584]
9 pm
On resuming
The Chairman: I have received a letter from Mr. Paul Hadlow, the assistant editor of the Hansard Committee section who has been kind enough to write to me as follows:
"Dear Mrs. Dunwoody,
It might interest Members to know that all seven parts of the eighth sitting will be available tomorrow morning. There is a possibility that the last part covering proceedings between 11.25 am and 1 pm will not be available until the afternoon, but the printers are doing their best to ensure its availability tomorrow morning."
That gives me the opportunity to say how grateful we are to the Hansard employees in the House of Commons, who do a remarkable job without much appreciation.
Hon. Members: Hear, hear.
Mrs. Roche: I would not dream of questioning the good faith of hon. Members' endeavours to probe the Bill and the Government's intentions, but there may be more to it than mere probing. It seems that Opposition Members' objections to the clause, which are framed in the amendment, are rather I use a word that they used sinister. I may be wrong, but they seem to think that the Bill should not make as much progress as it could. However, I will let that unworthy suspicion go and deal with the amendments.
The hon. Member for Daventry will agree that the amendment rests on the words "in good faith". Those words are based on existing employment law in section 104(2) of the Employment Rights Act 1996. If the good faith test was sufficient in the legislation enacted by the Conservative Government, why are Opposition Members now questioning it?
The history of the words "in good faith" is interesting. Section 29 of the Trade Union Reform and Employment Rights Act 1993 introduced an automatic right not to be unfairly dismissed for bringing proceedings to enforce any statutory employment rights or for alleging that the employer had infringed such rights. That section is now consolidated in section 104 of the Employment Rights Act 1996.
Mr. Hammond: I defer to the Minister's legal knowledge, but is she saying that the clause is redundant, because existing employment law states that workers' rights are protected while they pursue them?
Mrs. Roche: No. I am glad that the hon. Gentleman intervened, because that allows me to explain the position. The clause makes a separate set of provisions. I was drawing an analogy and saying that the good faith test is not a new concept. It is a known concept in employment legislation and, indeed, has been used in previous employment law and under previous Administrations. In 1993, when the test was introduced, the Secretary of State for Employment was the right hon. and learned Member for Folkestone and Hythe (Mr. Howard).
Mr. Lansley: I am afraid that I am not as familiar with the Employment Rights Act 1996 as the Minister, but are we not seeking to apply the test to an area other than that to which it has been applied under the Act? Secondly
The Chairman: Order. Interventions must be brief.
Mr. Lansley: Thank you, Mrs. Dunwoody. To what precisely does the in-good-faith test apply in the Employment Rights Act 1996?
Mrs. Roche: Its application is analogous. As I said before, when I quoted from the Act, the test is used basically to deter frivolous and vexatious claims. I understand as I have banished my unworthy suspicion that Opposition Members are probing our intentions. They appear to be saying that this is a completely new test, but nothing could be further from the truth. The test has a history in employment legislation.
It is quite plain that the good faith test for making such a claim is perfectly sufficient to deter frivolous and implausible claims. No genuinely self-employed person a taxi driver for example will find it easy to claim payment from someone of the national minimum wage. Similarly, if someone is receiving double the minimum wage, it would clearly be silly for that person to submit a claim for payment of the minimum wage.
I would also point out to Opposition Members that the subjective good faith test must be measured against an objective test of reasonableness. That is a tried and tested principle of our legislation. The test of objective reasonableness that the amendments seek to add would add only to the bank balances of lawyers called on to argue over fine distinctions of meaning. The amendments would not improve the drafting of the clause.
Mr. Lansley: I am surprised that the Minister asserts, if I understand her correctly, that the in-good-faith test carries with it a test of objective reasonableness, or that claims that are in good faith must also be objectively reasonable. Good faith and reasonableness are not the same.
Mrs. Roche: I shall repeat what I said. The in-good-faith test is expressed subjectively but it must be measured against an objective test of reasonableness.
Mr. Lansley: That is absurd.
Mrs. Roche: I hear, Mrs. Dunwoody, that the hon. Gentleman believes that that is absurd. It is not absurd; it is the kind of undertaking that takes place in the courts every day. All kinds of things in criminal and civil law are expressed subjectively but are measured against an objective test of reasonableness. The hon. Gentlemen may well look puzzled, but if they examine our system, that is what they will find.
I hope that I have managed to convince Conservative Members of my case. If I have not done so, I would urge the Committee to reject the amendment.
Mr. Boswell: I hardly think that your hesitation in calling me, Mrs. Dunwoody, arose from unfamiliarity.
The Chairman: Order. I would not like it to be thought that we are too familiar.
Mr. Boswell: Indeed, nor are we contemptuous of one another.
I was a little disappointed, and almost nettled, by the Minister's suggestion that we should have tabled the amendment without good faith or with unclean hands in proceeding to consideration of what is, or is presented as, a legal point. With the best will in the world, I am not wholly happy with her response. I understand, and I think she is right, that there is a banding of this good-faith test in previous legislation. I also more or less understand that there may be an objective test in that the claim must be reasonable anyway. I think that these two come together in the process of pre-sifting that a tribunal will have to undertake. The Minister is looking a little more quizzical at that, but I am trying to think it out for myself, and it is important that lay people in the Committee should understand it.
Mr. Hammond: If I follow my hon. Friend's analysis of what the Minister has said, while she may be absolutely right, in that case is there any reason why she would not accept the amendment?
Mr. Boswell: That is an incredibly seductive remark, but sadly in my experience there is a propensity for Ministers, maybe from habit, to reject amendments, or for officials to write on briefs for the Minister "Reject", however reasonable the Opposition appear to be. It is usually possible to validate that, at least in the eyes of Ministers and sometimes even to the satisfaction of Committees, by saying that an amendment will cause legal difficulty and that only the lawyers will benefit.
Mr. Bercow: My hon. Friend the Member for Runnymede and Weybridge and I have been having a conversation on this point and he has an interesting view on it. I put to him another, which is simply stated. It is perfectly possible for somebody to act in good faith, wholly unconscious of his or her unreasonableness.
Mr. Boswell: I shall probably not follow my hon. Friend down that seductive path.
Let me summarise. We all agree that there is a good-faith test and that it is subjective. The Minster has told us, and for the purpose of the Committee I concede, that there is some kind of objective screen in terms of whether or not the action is unreasonable. To put it another way, if it is not reasonable, the tribunal would be in a position to sling it out, I think. That is a lawyers' argument. I then come on to the real world. We still have a problem with the level of industrial tribunal cases and with the apprehension, particularly of the smaller business, such as the one that I adverted to in moving the amendment, because it does not have the fire power to cope with such situations, however reasonable the employers may be. We also have, and I am troubled by this, the concern of the engineering firms, which is at the other end of the spectrum both of industry and of the nature of employment. Those are typically, though not always, larger firms, the kinds that have personnel departments and lawyers to advise them in house. They particularly ask that this point should be considered.
We still wish to register our support I hope that I have convinced my hon. Friends for our amendment on the grounds that serious and responsible industrial interests have expressed concern about the point and because we are concerned about the amount of traffic in industrial tribunals even before this new function and activity are added to them. It is on those grounds, by a relatively short head, that I do not seek to withdraw my amendment.
I invite the Minister to reflect on one matter, and indeed those who read our proceedings, and they will have a good read as a result of the work of Hansard. My observation is based on my experience on other Bills. If the engineering employers or any other representative body can produce specific evidence of the deficiencies of what might be termed the one-shot approach the good-faith test on its own in the Bill I hope that the hon. Lady will treat that as sympathetically as we would.
9.15 pm
Question put, That the amendment be made:
The Committee divided: Ayes 6, Noes 15.
Division No. 48]
AYES
Bercow, Mr. John
Boswell, Mr. Tim
Green, Mr. Damian
Hammond, Mr. Philip
Lansley, Mr. Andrew
Taylor, Mr. John M.
NOES
Betts, Mr. Clive
Brown, Mr. Russell
Cotter, Mr. Brian
Doran, Mr. Frank
Edwards, Mr. Huw
Healey, Mr. John
Keen, Ann
McCartney, Mr. Ian
Mallaber, Judy
Merron, Gillian
Pond, Mr. Chris
Roche, Mrs. Barbara
Smith, Angela
Taylor, Ms Dari
Woolas, Mr. Phil
Question accordingly negatived.
Amendment proposed: No. 114, in page 14, line 34, leave out "industrial" and insert "employment". [Mrs. Roche.]
Question put, That the amendment be made:
The Committee divided: Ayes 15, Noes 6.
Division No. 49]
AYES
Betts, Mr. Clive
Brown, Mr. Russell
Cotter, Mr. Brian
Doran, Mr. Frank
Edwards, Mr. Huw
Healey, Mr. John
Keen, Ann
McCartney, Mr. Ian
Mallaber, Judy
Merron, Gillian
Pond, Mr. Chris
Roche, Mrs. Barbara
Smith, Angela
Taylor, Ms Dari
Woolas, Mr. Phil
NOES
Bercow, Mr. John
Boswell, Mr. Tim
Green, Mr. Damian
Hammond, Mr. Philip
Lansley, Mr. Andrew
Taylor, Mr. John M.
Question accordingly agreed to.
Question proposed, That the clause as amended, stand part of the Bill.
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