Column Number: 31
Standing Committee F
Tuesday 11 December 2001
[Mr. Joe Benton in the Chair]
Amendment proposed [6 December]: No. 12, in page 32, line 16, at the end to insert the words
'(dd) to make an order prohibiting a representative of a party to proceedings before it from representing parties before Employment Tribunals or Employment Appeals Tribunals for a specified period of time by reason of the representative's conduct of the proceedings.'[Mr. Hammond.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 21, in clause 23, page 32, line 41, at end insert
'(dd) to make an order prohibiting a representative of a party to proceedings before it from representing parties before Employment Tribunals or Employment Appeals Tribunals for a specified period of time by reason of the representative's conduct of the proceedings.'.
Mr. Philip Hammond (Runnymede and Weybridge): I was responding to a point made by the hon. Member for Wolverhampton, South-West (Rob Marris) about extending the provision to cover barristers and solicitors. The hon. Gentleman said that that would cut across the principles of professional self-regulation, with which I do not disagree. However, the amendment's purpose is to cover a wider group than that and to deal with an omission in the Bill. If the Minister insists that the Bill provides that financial penalties should bite only on those who are remunerated for their services, how does he intend to deal with those who abuse the systemthose who are vexatious or whose conduct of a case is inappropriatewho are not remunerated and not subject to the other remedies provided in clause 22?
The Minister for Employment and the Regions (Alan Johnson): Good morning, Mr. Benton.
The amendment would increase the sanctions against representatives who charge for their services. Although I sympathise with the wish of the hon. Member for Runnymede and Weybridge (Mr. Hammond) to strengthen the tribunal's powers to rein in rogue representatives, we must not lose sight of the fact that the function of employment tribunals is to determine employment law disputes.
Mr. Hammond: The Minister is correct to say that the amendment would broaden the sanctions available against representatives who charge for their services,
Column Number: 32
but that is not its principal purpose, which is to provide the tribunal with a sanction that could be used against those who do not charge for their services.
Alan Johnson: That is true and I was coming to that, but the amendment would primarily introduce another form of sanction against the representatives that we have citedthose who charge for their services. The tribunal chairman has the power to ensure that proceedings before the tribunal are dealt with justly and expeditiously, but it is not for the tribunal to act as a regulatory body for bad representatives, paid or unpaid. It would be inappropriate for a tribunal chairman to pass judgment about the potential bad behaviour of representatives by prohibiting them from representing clients in employment tribunals in future, which would be the effect of the amendment. The chairman's powers should be limited to the proceedings before the tribunal.
We must also bear in mind the important point made by my hon. Friend the Member for Wolverhampton, South-West. He started to receive a little sympathy from Labour Members, but we have recovered from that in the intervening few days. He raised an important point about the risk of undermining the self-regulation of the legal profession. The fact that a representative has been the subject of a wasted costs order should be sufficient deterrent against further bad behaviour. It would be a foolish representative who persisted in behaviour that cost money rather than made money.
I am satisfied that the new provisions in respect of representatives will deter poor conduct, as well as ensuring that wronged parties are properly compensated for their loss. The same arguments apply to the employment appeals tribunal, to which amendment No. 21 relates, and I ask the hon. Gentleman to withdraw the amendment.
Mr. Hammond: In our short progress to date, I have found the Minister's responses constructive and helpful, but he seems to be departing from that. I am unsure whether the Minister is deliberately or inadvertently misinterpreting the amendment, but it is clear to me that its purpose is to allow the Minister the scope to provide the tribunal with a remedy against representatives who are not paid. The Bill already contains remedies for dealing with representatives who are paidwe shall return to the issue of defining who those arebut contains no remedies for dealing with those who are unpaid. The purpose of the clause is to ensure that those who abuse tribunal proceedings can be dealt with properly. In the case of paid representatives, that will be achieved by the imposition of financial penalties.
The Minister has made it absolutely clear that he does not favour the imposition of financial penalties on those who are unpaid, so I am proposing a non-financial remedy to ensure that someone who abuses the procedure can be penalised. The Minister has not addressed the purpose of the amendment and has said
Column Number: 33
nothing about how he intends to deal with those unpaid representatives who abuse the tribunal proceedings.
Norman Lamb (North Norfolk): I should declare that I am a member of the Law Society and a consultant to a law firm, although a somewhat non-active consultant.
I question the hon. Gentleman's assertion that the penalty is non-financial. Clearly, it could apply to both paid and unpaid representatives, and it could have a substantial financial impact. I appreciate that the hon. Gentleman probably does not like the Human Rights Act 1998, but I wonder whether he has considered the implications of the amendment for the individual's right to work. In that context, what rights of appeal or challenge to a banning order would a representative have? Such an order is like a sin bin or red card, and would prevent someone from working for some time. I cannot see any provision for that in the amendment.
Mr. Hammond: I am interested to hear that the hon. Member for North Norfolk (Norman Lamb) is a member of the Law Society. I trust that he was not responsible for drafting the amendments that it proposed, which the hon. Gentleman and his colleagues originally tabled verbatim, but I shall say a little more about that later.
I am not suggesting that the drafting of the amendment is perfect or that the amendment is all-embracing; it may not be, but it has been tabled to explore the Minister's intentions. It is customary for Ministers to accept that an amendment raises a good point, even though it is not perfect, and to agree to introduce something similar on Report. I was hoping to hear something similar from the Minister today.
The hon. Member for North Norfolk raised a point, as did the hon. Member for Wolverhampton, South-West, about the impact of the amendment on paid representatives. I acknowledge that it would constitute an additional sanction against paid representatives and I understand the concern of the hon. Member for North Norfolk that it might fall foul of the Human Rights Act 1998. However, I suspect that those who drafted that Act did not imagine that it would prevent vexatious lawyers from appearing in courts whose procedures they abused.
I accept the hon. Gentleman's concern and assert again that, however imperfect the drafting, the amendment's purpose is to explore how the Government intend to deal with vexatious or improper conduct by non-remunerated representatives. If the provision is to be even-handed, it must deal with both lawyers and unpaid representativessuch as union representatives, citizens advice bureau advisers or officials of employers federationswho abuse the tribunal process or otherwise act inappropriately. It is perfectly reasonable to raise the issue, and the Minister needs to have an answer.
I was surprised to hear the Minister say that tribunals were not appropriate bodies to pass judgment on the conduct of representatives. Surely,
Column Number: 34
that is precisely what they are being asked to do in clause 22, which allows them to make an award of costs against paid representatives on account of their conduct of the proceedings. The tribunal is, therefore, clearly considered an appropriate body to pass judgment on the conduct of a representative. It has a remedy in the case of unacceptable conduct on the part of a paid representative, but not an unpaid representative.
Rob Marris (Wolverhampton, South-West): I draw the hon. Gentleman's attention to line 10 at the top of page 32. Surely, much of what he is driving at is covered by proposed new subsection (b), which refers simply to a representative, not to a paid representative. The next line refers to ''costs or expenses'' that are incurred by a party, not by an opposing party.
Mr. Hammond: The hon. Gentleman highlights the weakness that we object to in the Bill's architecture. He will find no reference to a paid representative anywhere in the Bill because there is none. The Trades Union Congress brief tells me that the Government intend to limit the application of the clause to paid representatives, but the Government have not told me that in the Bill. We have been exploring the issue, and I suspect that the Minister will be happy to confirm that proposed new subsection (1A)(b) will indeed be limited to paid representatives. That is the import of what he has told us.
There is a gap in the armoury that the Minister is giving tribunals through regulations, and I must admit to a tad of suspicion that it is being left for political reasons. I want an even-handed approach to be taken with those who abuse the tribunal, regardless of what type of representative they are or whom they represent, and we shall come to that in a moment. The Minister is arming himself to the teeth to deal with vexatious remunerated representatives, butif I understand his rejection of the amendment even in principlehe refuses to empower the tribunal through regulations to deal with unremunerated representatives.