Public Bodies Bill [HL]

This amendment deals with the way in which the employees of the organisations covered by this Bill are dealt with. On one level, I apologise to the Minister for bringing the issue back because we debated it in Committee. Subsequently, I had a meeting with him and he sent me a useful letter. His goodwill in this respect is appreciated. However, I do not think that the situation is as clear as it should be, and I certainly do not apologise to the House or to the Government as a whole for bringing back an issue which is important to what are still several thousand public sector employees in those organisations which remain in the Bill. One has to accept that some of the anxieties and suspicions relate not so much to the Bill as to the perceived general attitude of some members of the Government towards public service workers as a whole. Many employees of the organisations concerned have huge expertise and have been there for many years. They have done a very effective job on behalf of the population as a whole in those areas of public responsibility. I appreciate that the Government have reached a conclusion that some of these bodies are no longer necessary. They have also reached a conclusion that some of their functions, powers and responsibilities are best carried out elsewhere, either in central government, the private sector, the third sector or in other public bodies. That has left huge uncertainty among employees. The Minister’s assurances have gone some way towards clarifying the position, but not entirely. The Minister’s position seems effectively to be that where there is a transfer, TUPE will apply, except where there is a public function exemption, in which case the Cabinet Office guidance—the COSoP, as it is termed—will apply, which will give rights and responsibilities equivalent to TUPE. If there are any doubts, what is now Clause 23(6)(f) will apply and Ministers will be able to clarify the situation when the regulations regarding individual organisations come into play. On the face of it, that is a relatively watertight position and, generally speaking, the principles of TUPE will apply where there is a transfer. I do not apologise for reverting to the organisation of which I was chair until Christmas and which is still in the Bill. For reasons best known to the Government it is listed under Schedule 1, for abolition, whereas BIS’s policy as far as I understand it is to transfer the powers rather than to abolish them. They will be transferred in the main to Citizens Advice, which is a private sector body. If that is the case, it is not clear which powers, functions and responsibilities are being transferred or whether all of them will be, and whether they will all be transferred in the same direction—it is clear that they will not, because Citizens Advice Scotland and the Consumer Council for Northern Ireland will have some, other bodies will undertake others and others will lapse. That is not an unusual situation with the various bodies still stipulated in the Bill; indeed, we have just had a debate focusing largely on the RDAs, some of whose functions will in effect transfer to local partnerships, local government and elsewhere. Uncertainty is therefore quite widespread until the consultative process leading to the regulations makes the situation clearer. In his letter to me, the Minister has said: "““In any transfer scheme relating to an order made under the Bill, a person will need to … determine a ‘relevant transfer’, as defined by TUPE, is taking place. This will sometimes not be the case, for example where the new organisation will be carrying out a function or activity which is different in nature from the old, or where the exception in TUPE””—" which relates to public functions— "““applies. In the first case, it would not be appropriate to apply TUPE. The reality is that a ‘transfer’ is not actually taking place—employees’ roles are not going to be continued. Accordingly, the situation should be dealt with by their current employer terminating their contracts by reason of redundancy and meeting his liabilities as regards compensation””." That is quite logical, but, regrettably, it is not what the guidance on TUPE from BIS actually says at present. It effectively says that the responsibility for determining which measures will be regarded as transferred rests not with the existing employer but with the transferee employer—so not the transferor employer. That has caused some confusion in the past, as is did when Consumer Focus was first set up because it did not seem to be the logical way of approaching things. It made the Minister’s words seem more logical in many respects. But they are at odds with what tribunals have been interpreting under the 2006 regulations and what, in slightly obtuse form, the rather lengthy guidance issued by BIS states very heavily: it places responsibility on the transfer organisation. That is one example of the lack of clarity and we need greater certainty on the record. Relatively few bodies involved in this Bill are designated for merger, but when there is a merger, everything goes into the merged body, whether or not that merged body will have the responsibility for doing everything that the previous organisation was going to do. In which case, the exemption does not apply, but on the Minister's interpretation TUPE does not apply either. I am well aware that there is a general view in Whitehall, following the Cabinet Office's guidance and so forth, that says to staff, trade unions and Back-Benchers like myself, ““Don't worry about it you lot. It will all become clear. The Government are committed to applying the TUPE principles””. It is also true that in certain situations, where the function is not continuing, it may be in the interests of individuals for TUPE not to apply. But we still need clarification as to what is a relevant transfer. In the case of my old organisation, it is not clear what is being transferred. It is not clear to whom and it is not clear whether some functions will not be transferred and whether TUPE or COSoP will be applied. In that respect and in relation to many of the other bodies, we anticipate a consultative document fairly soon. However, I understand that the consultative document on consumer structures that was expected to be issued in March has been significantly delayed and the final outcome of that is again not clear, so the whole process has been put back. I would like the Minister today to clarify the situation. I accept his goodwill in this matter and I assure him that I will not press the issue to a vote, but I would like on the record at this last stage an indication of where the Government stand. It is not all that easy to rely as a safety net on what is now Clause 23(6)(f), which states that a transfer scheme may, "““if the TUPE regulations do not apply in relation to the transfer, make provision which is the same or similar””." The clause says ““may”” and it is sensible in the drafting to say ““may”” because there are a lot of other subsections to which ““may”” clearly applies, but it would be helpful if the Minister would say that as far as that subsection is concerned, the transfer scheme would make provision for the equivalence of TUPE to apply in those circumstances. I am asking the Minister to say what he has already attempted to convince me of, although I do not think we are yet there: that in all situations where there is a transfer or merger, individuals will be subject to either TUPE or the public sector equivalent. The default position should be that TUPE or COSoP applies and that in that sense the Government accept their responsibility to all employees of the quangos that remain subject to the Bill and to the obligations that they have in terms of individual and collective procedures under TUPE regulations. If the Minister can use words to that effect, I will not press him further today and he will go some way to reassure several thousand rather anxious public sector employees, many of whom the Government will continue to need to rely on, albeit possibly in a different guise. I beg to move.