Transfer of Undertakings (Protection of Employment) Regulations 2006

My Lords, I am grateful to the noble Lord, Lord Hunt, for moving this Motion. I will not repeat his clear description of why the practitioners in this area are so unhappy with the regulations, or underestimate the difficulties that the DTI has clearly faced in drafting the regulations in a clear way. It has obviously been difficult to get it right. Although we on these Benches have no problems with the principles that lie behind the regulations, it is clear that, in certain limited respects, the DTI has not got it wholly right. The Association of Business Recovery Professionals, as we have heard, has serious concerns that the regulations as drafted will cause confusion and make its job more difficult. This is not a body given either to political posturing or to taking matters into its own hands when it does not feel seriously about them. It is a highly technical trade association. Interestingly, the noble Baroness, Lady Turner of Camden, did not mention it as being one of the groups that has been consulted. However, it has, as we have heard, two complaints. The first relates to definitions of the types of proceedings to which the regulations apply and the liabilities which will pass to a purchaser. These are not matters of principle, but technical issues. Secondly, R3 has concerns about the mechanics relating to the provision of information and consultation. As the noble Lord, Lord Hunt, made clear, as currently drafted, they do not seem to be practical to put into operation in the circumstances of some insolvencies. It is strange, given the long period since the directive was passed and the fact that there have been significant consultations, that we still have this difficulty. I suspect one reason is that the Government do not always mean what the man or woman on the street means by ““consultation””: if you ask people their views and they give them to you and are standing on firm ground, you amend your proposal. I deal more with Treasury than DTI matters, but it is now commonplace for the Treasury either not to consult or, where it does, to ignore what is said. As a result of that, we have had a string of tax measures in recent years which have had to be reversed because they have proved to have perverse and unintended consequences. I slightly fear that this is what has happened in this case. I therefore ask the Minister—I am sure he is going to enlighten us anyway—whether the Government believe that the concerns expressed by insolvency practitioners are simply unfounded. If so, will he explain to the House why that is? If not, will he explain why a little further time was not taken to resolve these points? Clearly, this directive was passed in 2001. It does not desperately matter whether these regulations are passed tonight or in a month or two’s time. There is no overriding time constraint to get it right. Noble Lords will have heard me make my final point in debates about secondary legislation in your Lordships’ House. Here we are, yet again, having a debate about statutory instruments over which we have no control whatever. Whatever we do tonight—whether we vote or not, whether the Motion is passed or not—will not have the slightest practical effect. Although we feel that we are fulfilling a function in shining a spotlight on to what may be inadequacies of legislation, as a legislature, that seems to be an inadequate function. We ought to be able, where there are problems, to cause regulations to be reconsidered. There are two ways in which we could do that. One is to follow more regularly—although I am not suggesting in every case—the precedent which I believe has been set in the Identity Cards Bill, under which regulations can be amended by Parliament. Another suggestion is that in a case such as this, where real problems arise—not imagined problems, put forward by vexatious people—the House ought to be able to refer the statutory instrument in question back to the department for further consultation in specific areas. Just as we return legislation to another place and ask the Government to look at it again, we might be able to do that with statutory instruments, within a set and tight timetable. I realise that this is neither the time nor the place for a full-scale debate on these rather more far reaching changes, but this House needs always to look at how it can operate more effectively. In terms of statutory instruments, we do not operate in an effective manner. I have great sympathy with the noble Lord, Lord Hunt, and will support his Motion.