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Column 166

Clelland, David

Cryer, Bob

Cunliffe, Lawrence

Dixon, Don

Foster, Derek

Godman, Dr Norman A.

Home Robertson, John

Howells, Geraint

Hughes, John (Coventry NE)

Illsley, Eric

Kennedy, Charles

Kirkwood, Archy

McCartney, Ian

McKay, Allen (Barnsley West)

Meale, Alan

Nellist, Dave

Redmond, Martin

Richardson, Jo

Skinner, Dennis

Strang, Gavin

Wallace, James

Wareing, Robert N.

Welsh, Andrew (Angus E)

Welsh, Michael (Doncaster N)

Wise, Mrs Audrey

Tellers for the Noes :

Mrs. Llin Golding and

Mr. Frank Haynes.

Question accordingly agreed to.

Amendments made : No. 31, in page 9, line 11, leave out from with' to section' in line 12 and insert

negotiations with the employer that are related to or connected with any matters which fall within'.

No. 32, in page 9, leave out lines 15 to 17 and insert

(ii) any other duties of his, as such an official, which are concerned with the performance, on behalf of employees of the employer, of any functions that are related to or connected with any matters falling within that provision and that the employer has agreed may be so performed by the trade union ;'.-- [Mr. Lee.]

Clause 16

Pre-hearing review of proceedings before industrial tribunal

Mr. Wallace : I beg to move amendment No. 35 in page 12, line 18, leave out lines 18 to 21 and insert--

(i) by the Tribunal ; or

(ii) as determined in accordance with the regulations, by any chairman being a member of the panel of chairmen.'.

Madam Deputy Speaker : It will be convenient to discuss at the same time the following amendments : No. 36, in page 12, line 31, leave out £150' and insert £50'.

No. 38, in page 12, line 42, after order', insert

but the sum so specified shall not exceed 2 of the sum for the time being prescribed for the purposes of section 75(1) of this Act.'.

No. 37, in line 42, at end add--

(4) Where regulations are made which authorise the making of an order of the kind referred to in subparagraph (2)(a) above, nothing in this Act or in those regulations shall authorise the making of such an order unless--

(a) the party against whom the order is made has had not less than 3 weeks' notice of the pre-hearing review, or has agreed in writing to waive such notice ;

(b) that party has had an opportunity to appear in person or be represented at the pre-hearing review, or to submit written representations if he so elects ;

(c) the tribunal or person which makes the order has made such enquiries as are reasonable in the circumstances, including his financial obligations, and is satisfied that--

(i) it is reasonably practical for that party to pay the deposit within the time within which it is ordered to be paid ;

(ii) undue hardship will not be caused to that party if the deposit is paid by him and is not refunded to him ;

(d) the tribunal or person which makes the orders considers in the light of the originating application and entry of appearance, any representations in writing which have been submitted and oral argument advanced by or on behalf of a Party, that

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the contentions or any particular contentions of the party against whom the order is made appear or appears to have no reasonable prospect of success.'.

( No. 39 in page 15, line 21, after Act', insert--

(c) an order under section 16(3) which increases the sum specified in paragraph 1A(2)(a) of Schedule 9 to the 1978 Act.

Mr. Wallace : The amendment relates to the administrative and initial arrangements in clause 16 for pre-hearings before industrial tribunals. Its purpose is to ensure that, when determining whether a case receives a pre-hearing review, that determination shall be carried out only by the tribunal or by a chairman who is a member of the panel.

The clause as drafted makes provision for the promulgation of regulations permitting

"such persons as may be determined by or in accordance with the regulations"

to conduct a pre-hearing review. That vague phrase could cover a multitude of sinners as well as a multitude of virtuous people. It would be unsatisfactory to leave that form of words unamended. The British Institute of Management feels that it would be better if we retained the present system of informal discussions that often take place before a tribunal goes ahead, rather than the formalised structure set out in the clause.

However, if we are to have an institutionalised pre-hearing review, it should be undertaken by the appropriate body--either by the tribunal or by those who, because of their qualifications and experience, have been selected to be members of the panel of chairmen, and that would be the effect of amendment No. 35.

Amendment No. 36 would reduce the deposit which any pre-hearing review could impose from £150 to £50. The history of this provision is somewhat chequered. When the Government first proposed the idea of a threshold fee, they suggested £25 but thought that it should be paid by all comers ; there was to be no element of discretion. That proposal met with little approval when it went out for consultation, and it was rejected. In the light of that, the Government thought again and proposed that it be increased from £25 to £150, but making it conditional on the outcome of a pre-hearing review, no doubt on the basis that they were trying to weed out frivolous or vexatious claims.

One might have thought that before going ahead with a proposal which, in an almost novel way, introduced a financial threshold that a person must cross before putting his or her case to a tribunal, there would have been an overwhelming body of evidence to show that under the present arrangements there was widespread abuse. But there does not appear to be much authority for that proposition. Indeed, the bodies which have made comments on this provision--for example, the employment committee of the Law Society and the Law Society of Scotland--have commented that there is no body of evidence to suggest that there has been a great number of frivolous cases clogging up the tribunal system. Those bodies, along with others, find it a regrettable precedent that we are introducing into our system of justice this admission fee before people can take their case to a proper hearing.

In many respects it would be better if there were no deposit at all and if this review did not exist. But, if there is to be a deposit, it is our contention that £50 would be easier to find for less well-off employees, who, perhaps

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because they have become unemployed, are much more likely to be involved in tribunal cases. Whether the Government may say about its being wrongly put about that in every case there will be a £150 deposit--I accept that that is not what is proposed here--one knows full well that that sort of idea gains currency. That in itself might deter people from taking the initial step in trying to achieve justice, as they see it, in the case of a claimed wrong. People with valid claims might never get to the stage of lodging them. Therefore, we propose a sum which is much more realistic, although it would be very difficult for many people to find even £50 and possibly they would have to be given some time to pay. But it would be more within their ability to pay than the sum proposed in the Bill as it stands.

At this point I should refer to amendment No. 38, which I have no doubt the Minister will suggest contradicts what I have just said about amendment No. 36. I accept that there is a contradiction and something of a fallback position in amendment No. 38, because if the 2 per cent. figure were to apply in present circumstances the sum would be £170 rather than £150. We have sought to put this in because, as things stand, the Secretary of State could by regulation and subject to the negative procedure, amend the sum of the deposit from £150 to any figure at all by substituting

"such other sum as is specified in the order."

No limit is put on it, and it is unsatisfactory that that carte blanche should be given to the Minister subject only to the briefest scrutiny in the Committee on Statutory Instruments, which would not be allowed to amend and would have only a limited opportunity to discuss the principle behind it. That is why we have suggested that there should be an attempt to link the deposit to the award payable, so that if there is any suggestion that the deposit should go up it would be necessary to increase the maximum award. That would impose a realistic restraint on the actions of any future Secretary of State, or indeed the present one, if he sought to abuse the procedure which is set down here.

Amendment No. 39, if carried, would make it necessary for these regulations or any substitution sum to be subject to the affirmative procedure. This would indicate the importance of this as a fundamental principle of justice not just related to the question of industrial tribunals. We are dealing here with people's rights and it is an important departure in the administration of justice in this country. It is not an incidental matter and when we are dealing with such a fundamental matter the affirmative procedure is much more appropriate.

The only amendment to which I have not yet referred is No. 37. This is an important amendment because it seeks to set some parameters within which the pre-hearing review must operate. It ensures, for example, that the basic precepts of natural justice are observed and that adequate time is given by one party to the other if a pre-hearing review is sought with the likelihood of a deposit ensuing. It ensures the right to representation or, if there is no representation, the right either to be heard or to make written representation. It tries to ensure that orders are not made against people who cannot realistically comply with them, in which case a deposit really amounts to a dismissal of the claim. The amendment proposes that it would be incumbent on the tribunal or the chairman to ensure that such a sum was not imposed if the effect would be that the claimant was unable to take the claim any further. It also

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proposes that deposits would be imposed only in circumstances in which costs awards could be made under the present rules.

2.45 am

Much of what is proposed in clause 16 is a sorry departure from the present system. There is no evidence that the present system is being abused and Opposition Members--of whom there are still a number here even at this late hour--regret very much that a fee is to be introduced into our system. Given that that is the case, and although it is perhaps optimism triumphing over reality, given the Government's attitude to any Opposition amendments, we tried to propose a halfway house, and to put some parameters and restraints on the Government's proposals. It is in that spirit that we move the amendments.

Mr. Nicholls : The hon. Member for Orkney and Shetland (Mr. Wallace) has raised a number of points on the amendments and I will do my best to deal with them.

Clause 16 as drafted gives the Secretary of State the power to make regulations authorising pre-hearing reviews to be carried out either by the tribunal chairman or by the full tribunal, which would obviously include the lay members as well as the chairman. That is also the effect of amendment No. 35, so to that extent it is difficult to see the difference in substance between the amendment and the Government's proposal, although, if I understood the hon. Gentleman correctly, he was concerned that there was reference in clause 16 to "such person", which may have raised a doubt in his mind about what was intended. We are advised that that formula has to be used because the regional chairman might be sitting and the regional chairman is separately defined under the regulations, or the president himself could be referred to. That is why that formulation is used. Clause 16, as drafted, already does what the hon. Gentleman has in mind.

Amendment No. 36 is, as the hon. Gentleman said, a halfway house. It proposes to reduce from £150 to £50 the maximum deposit for a pre -hearing to be ordered. I dare say that the hon. Gentleman would think it rather ungenerous of me to say that if he is prepared to concede the principle of a deposit, our judgment is as good as his. He would say that he does not concede the principle, but lives in the real and practical world and hopes that Ministers do as well. If one concedes, if only for the purposes of the argument, that some deposit is appropriate, it is a question of where one draws the line. Neither £50 nor £150 is a princely sum. In each case, the sum would be only a maximum. There is no question of a tribunal being under an obligation to order a sum at all. Although it may seem to be the judgment of Solomon, we take the view that £150 is right.

Amendment No. 37 seems to us to be unnecessary because virtually all the matters that it covers would be covered by regulations which are due to be made under clause 16 in any event.

The Government take the view that amendment No. 38 unduly fetters the discretion of the Secretary of State in determining the size of the maximum deposit. It would also be unnecessarily complicated. I accept that the amendment is ingenious, but it is difficult to see the logic in trying to enshrine in law a mathematical relationship between the compensatory award maximum and the deposit maximum.

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Clause 16 allows the Secretary of State from time to time to alter the limit on the amount of a deposit, and clause 21(4) makes any order altering the limit subject to the negative resolution procedure. Amendment No. 39 would provide that the draft of any such order would have to be laid before, and approved by resolution of, both Houses of Parliament. This debate echoes a number of debates that we had in Committee about whether the affirmative or the negative procedure should be used. Someone--it may even have been me--suggested that such debates entailed an element of ritual and that, in the unlikely event that our roles were ever reversed, Ministers might one day be Opposition Back Benchers and arguing the opposite view. Lively though my imagination is, I cannot encompass that prospect at this time in the morning.

The Government regard this as precisely the sort of matter that should be dealt with by the negative resolution procedure. Therefore, while I should have liked to tell the hon. Gentleman that his optimism would triumph over his experience, I cannot recommend his amendments to the House.

Ms. Richardson : It is rather unfair of the Minister to hint that the hon. Member for Orkney and Shetland (Mr. Wallace) was abandoning the principle of opposition to the £150 deposit. I do not think that he was. He was at pains to say that this was an honest attempt to arrive at a halfway house. Let me say to him and to the Government that the Opposition Members also stick by the principle that we are opposed to the £150 deposit. Like the hon. Gentleman, we should have preferred the clause to be deleted. Nevertheless, the amendments represent a good way of rehearsing our extensive arguments in Committee and of placing on record the opposition that remains to the concept of a deposit of the size envisaged in the Bill.

It is all very well for the Minister, in a fairly light-hearted way, to dismiss £150 as not much. To the majority of working people, £150 is quite a lot. To many people, £50 is quite a lot. To suggest that it does not amount to much more than a row of beans--I am not saying that the Minister used those words ; he did not--is to underestimate its importance. I remind the Minister that during the consultation procedure a number of prestigious bodies expressed their opposition. The British Institute of Management was not totally opposed to a deposit but argued that it would be much more of an obstacle for an employee than for an employer. We can all echo that. The BIM also suggested that employers might automatically apply for an order. The Engineering Employers Federation felt that, although the £150 deposit would not deter those backed by a union, it might deter-- would deter--those who were not unionised but

"might have a genuine case".

Given the Government's antipathy to unions, one would have expected them to give a little thought to those who are not unionised. The TUC, the Equal Opportunities Commission and the National Association of Citizens Advice Bureaux were wholeheartedly against the £150 and the Government would have been wiser to listen to their advice. As it is, the Government will oppose the amendments, which will be lost in the mists of time--whatever time it is now. We shall have to see what happens. If statistics are kept after the

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provision for a deposit becomes law, I am sure that they will show that many genuine cases will not be taken to a tribunal.

We must recognise that not only will many of those faced with a £150 demand not be able to pay it, but that many people will not even take their cases to a tribunal because of the possibility of that deposit being demanded. Although the Minister has said that it is a deposit and that £150 is the maximum, it will deter people. We want a system of industrial democracy that does not result in any employee, whether or not unionised, being deterred from pursuing his or her rights as he or she perceives them. The clause is just another way of the Government putting blocks in the way of the employed and giving an advantage to the employers. We should prefer the clause to be deleted but, given that that is not a possibility because our amendment was not selected, we shall wholeheartedly support these amendments.

Mr. Haynes : I am not surprised that we are debating such important amendments, which I welcome. The Opposition are opposed to any deposit. It is immoral of the Government to impose a deposit of £150. Ministers have their heads in the clouds ; they do not have their feet on the ground ; they do not understand the problems of low-paid workers. The Government do not want workers to belong to a trade union and encourage them not to be.

When I was a trade union official in the mining industry in the Nottingham area, members made their contributions each week and that entitled them to certain benefits. If the deposit had been law then, one benefit would have been that the union would probably have paid the £150. That is what happens in the trade union movement. The Ministers belonged to a closed shop in their previous professions and are, perhaps, still associated with those professional organisations. I cannot understand why they argue against the closed shop in trade unions. The closed shop means protection for members. The Government are imposing a penalty of £150 on workers who have had a shoddy deal from their employers and have had to take their cases to an industrial tribunal. It is immoral, although I am no longer surprised by many of the Government's actions.

3 am

The Government encourage low pay for workers. We have plenty of low-paid workers. If a worker is not in a trade union, he will have to find £150, probably just after losing his job. Where does the Minister get his ideas from? Has he really thought this out? He is nodding his head but I do not think that he has thought it out. He has not got his feet on the ground. He has not worked in the areas in which many Opposition Members have worked. We understand fully the implication of a £150 deposit.

It annoys me when I hear the Secretary of State for Social Security shooting his mouth off about how well off people are. We have poverty in this nation. We have people on very low earnings. The hon. Member for Pendle (Mr. Lee), the Minister responsible for tourism, is encouraging more and more people into tourism to work for very low wages. If there is an unfair dismissal and the person wants to go to the tribunal, how the hell does the Minister think that that person will manage to get a fair deal? The worker will not be able to go to the tribunal

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because he cannot afford the £150. We must remember that there is always the danger that he will lose, even though he has a first-class case. That is why the £150 deposit is immoral.

I am surprised--no, I am not surprised that this is happening under the mob that we have in government. Mark my words ; when we kick out that lot on the Government Benches--

Mr. Lee : Never.

Mr. Haynes : The Minister will eat his words one day. He might be one of those who will go and who may have to go back into practice again, with nice, big, cosy earnings in the closed shop.

Mr. McCartney : At £150 an hour.

Mr. Haynes : Yes, representing employers at tribunals, getting rich pickings. We are talking about people in the lower income group who are in serious financial difficulty. It is not funny ; it is a serious matter. The Minister should be in a position to find out about poverty. I know what it is all about, as my father did before me. I have lived in poverty ; I have breathed it and slept in it. I know how people are suffering when they are not getting the earnings that they should.

Mr. Teddy Taylor (Southend, East) : I accept what the hon. Gentleman says--I think that he knows that I am a lifelong trade unionist--but does not he accept that there is another side to the matter? With all the new responsibilities, rules, regulations, restrictions and conditions that are being imposed on the United Kingdom Parliament and Government in consequence of EEC directives, as most of the Bill is, employers will spend all their time going to tribunals instead of getting on with the job of production. The hon. Gentleman's party has new enthusiasm for all this nonsensical bureaucracy that is making the life of industry a nightmare. Does he accept that there is another side to the story and that perhaps something should be done about it?

Mr. Haynes rose--

Mr. Deputy Speaker (Sir Paul Dean) : Order. I am sure that the hon. Member for Ashfield (Mr. Haynes) will not be tempted to broaden the debate.

Mr. Haynes : You have jumped the gun, Mr. Deputy Speaker. I understand why. The hon. Gentleman has an argument and he is using it and he is trying to use me as well, but I am not going down the EEC road tonight. I do not think it would be fair. But I understand why the hon. Member for--[ Hon. Members :-- "Southend."] I am talking about the hon. Member for Southend, East (Mr. Taylor). I know, because he has said it so often before. We have had debates in the early morning on these directives from Europe.

The point is that I maintain my argument and I will never change. The Conservatives will never change, but we will change the system in here-- that lot will be over here and we will be over there. We will put things right, and I promise the Minister that it will happen at the next election, because the people outside have had enough. They do not want any more, but they have three more years, so we will have to make the best of it. However, there is worse and worse to come. With such proposals as this, matters will get worse and worse. A lot of people in

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my constituency are suffering under the Government, and here they go again--a lower-paid worker must pay a deposit of £150 to fight a case which it is possible that he might lose. It really is immoral. My hon. Friend the Member for Barking (Ms. Richardson) said at the Dispatch Box only a few minutes before I started to say my piece that what the Government were doing is wrong and that we do not accept that that payment should be made. It is not fair, it is completely immoral, and I believe that we should vote for the amendment. I hope that some of the Conservative Members will change their minds and see the unfairness involved. I am living in hope, I know. If they are honest with themselves, they will vote with us tonight on these amendments. [Interruption.] They will probably not have enough for a closure, because they are dipping very fast. There were 103 at the last count. The Government Chief Whip has a job to get out there and get them in, in the hope that they will win a vote tonight, because at the moment they are on a loser. Conservative Members are going down and down, but we are still here fighting on behalf of the people we represent, especially those lower-paid workers.

Mr. McCartney : They could not raise a deposit between them.

Mr. Haynes : My hon. Friend is quite correct. I think that you have had enough of me, Mr. Deputy Speaker.

Several hon. Members rose--

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