Mr. Hammond: I know that the Minister likes to be even-handed and absolutely fair, so, since he has referred to tightly resourced voluntary organisations and trade unions, perhaps he would like to place on the record an acknowledgement that many small businesses are also extremely tightly resourced.
Alan Johnson: Of course we are concerned about small businesses, far more so than the previous Government. We have taken measures in that regard.
The House of Commons research paper refers to
Mr. Hammond: I disagree with the Minister's ingenious interpretation of the wording of the Library brief. Will he tell the Committee what would be the characteristics of an in-house lawyer acting in a commercial capacity? Is he someone who stands to gain a fee on top of his regular salary?
Alan Johnson: We shall leave that until we go through the regulations. The hon. Gentleman knows that point; he has made it himself several times. He is suggesting that there should be no discrimination, no different classes of representatives. He is looking to extend the powers either through the sanctions on cost awards or by other sanctions to the voluntary sector. My argument about the voluntary sector is that the employment tribunals service could not function effectively for many applicants who do not have the resources for legal representation. If we extended this to cover CABs, employers' associations, trade unions and law centres, it would be a backward step for the employment tribunals service as a whole. That is the main reason why we are here: to improve the service given to applicants and respondents at employment tribunals. This measure would throw the baby out with the bathwater. I ask the hon. Gentleman to withdraw his amendment. If he will not, I ask the Committee to oppose it.
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Mr. Hammond: As I said, this is a probing amendment. The purpose was not to extend penalties to the voluntary organisations and trade unions to which the Minister referred, but to probe him on how he intends to define those paid or categorised by some other criterion as vulnerable to these procedures, and those who are not. If this short debate has demonstrated one thing, it is that that will be a difficult task and, frankly, the Minister does not yet have a clue how he is going to do it.
Alan Johnson: I have a clue.
Mr. Hammond: I do not think that he has. At the end of this discussion, I still do not understand whether in-house lawyers are to be included. If the Minister had been able to answer that question crisply and succinctly, he might have persuaded me that the answer to these issues is in the recesses of his mind. I suspect that someone has said, ''We'll make the distinction whether people are paid or not'', and has not yet thought about the fact that that is not a crisp, clean distinction.
Many cases will create difficult issues, some of which might appear very unfair. A highly qualified person who is not defined as paid could act outrageously but not have costs awarded directly against him or her. In another case, an unqualified person may be paid without being the avaricious chaser of large contingency fees whom the Minister clearly has in mind as the target. A person who asks for a modest fee to undertake the role of representing someone at a tribunal and who is not highly qualified but does their best may fall on the wrong side of the distinction. Perhaps the Minister has been a little too dismissive of that concern.
I shall withdraw my amendment on the basis that it is a probing amendment, but the issue will require careful attention before draft regulations are published. I only hope that we shall have an adequate opportunity to consider these matters when the regulations are published. All too often, we have a maximum of 90 minutes in a Standing Committee to consider regulations that are many pages long. That is precisely why these issues, although they perhaps cannot be resolved now, need to be aired at this stage, so that concerns are placed on the record, and the Minister and outside organisations can reflect on them. I hope that that means that the regulations will be more robust than the initial crude definition between paid and unpaid outlined by the Minister. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Hammond: I beg to move amendment No. 10, in page 32, line 17, leave out 'may' and insert 'shall'.
The Chairman: With this we may discuss amendment No. 19, in clause 23, page 32, line 42, leave out 'may' and insert 'shall'.
Mr. Hammond: Following the familiar structure, amendment No. 10 addresses a change to clause 22, and amendment No. 19 addresses a similar change to clause 23. The aim is to remove the Minister's
Column Number: 48discretion to introduce in the procedure regulations a provision for taxing or otherwise determining an award of costs. Clearly, there is a need either for taxation, which sounds like a rather formal system, or for another method of determining costs. However, it is not clear whether the Minister has it in mind that cost awards should be based on a full and complex taxation system as used in the courts or on a simpler system of standard cost awards, with one lump identified for one purpose and another lump for another purpose. That may be a simpler and cruder system, and I should be grateful if he would comment on that.
I suspect that the Minister will say that he intends to introduce a regulation providing for taxation or other determination of costs and expenses and that the use of the permissive word ''may'' rather than the prescriptive word ''shall'' is simply a drafting convention for legislation. If so, perhaps he will explain why that is a convention. I am sure that the Minister will look forward to doing that, as I look forward to the lesson.
We deal more and more often with Bills that are largely empty boxes and that depend heavily on secondary legislation, so I question whether it remains appropriate to provide for discretion in the Bill. We are not talking about discretion as to what it is in the regulations; clearly, the Minister will have that discretion. Why does he also need discretion as to whether even to introduce regulations? Without them, the overall logic of the Bill would fall apart. We live in a world where most or many Bills have the format of permissive primary legislation under which secondary legislation implements the details, so perhaps we should move from permissive to prescriptive phrasing, so that the Committee can at least know that there will be regulations and can ask the Minister to specify what they will say.
Alan Johnson: The debate is a re-run of previous debates on amendments Nos. 7, 18, 9 and 20. I may not be able to give the hon. Member for Runnymede and Weybridge a seminar on why the wording has traditionally been ''may'' and not ''shall'', but the discretion has always been allowed. The employment appeal tribunalin which the hon. Gentleman is also seeking an appealrather than the employment tribunal, has taken away the Lord Chancellor's discretion. It is a different body.
Under previous Governments, the discretion has existed every time the employment tribunals legislation has been amended. As in other debates, it would be curious to change ''may'' to ''shall'' in this context, when it is used so many other times in the Bill. The purpose of the amendment is to tease out whether we intend to use these powers. In Scotland, the term is ''taxation''. In England and Wales, it is ''assessment''. The answer is that we fully intend to use the powers, and we do not envisage any changes to the regulations with regard to the way in which the costs are determined, which in England and Wales is by detailed assessment in the county courts and in Scotland by taxation in the sheriff courts. There is no compelling reason to change what seems to have been consistent
Column Number: 49use of the wording over the years in relation to powers to make employment tribunals procedure regulations. I therefore ask the hon. Gentleman to withdraw the amendments.
Mr. Hammond: I am grateful to the Minister for his remarks. He has largely reassured me by making it clear that there will be provisions in the regulations to deal with taxation, which I did not know was an exclusively Scottish system. I understood that matters in the English courts were routinely taxed. Perhaps I need a seminar on that, although I am not entirely sure that I do.
Rob Marris: Will the hon. Gentleman give way?
Mr. Hammond: The cavalry is appearing over the horizon, and I am grateful to the hon. Gentleman.
Rob Marris: I can assist the hon. Gentleman. On 6 April 1999, the term was changed to ''assessment of costs'' in civil courts in England and Wales.
Mr. Hammond: That is excellent, although I am always disappointed when an archaic term passes out of use and some rather bland and bureaucratic term replaces it. I once struck up a conversation with someone in a pub. That was before I was a Member of Parliament, which is as well, because as all Members know, when someone asks us what we do and we tell them that we are MPs, it tends to be a conversation stopper. He told me that he was a taxing master and he assumed that I would not know what that was. Fortunately, I did, but I hate to think that that individual would have to tell me that he was an assessing master, which does not have the same ring at all.
The Minister has reassured us that there will be proper provision for assessing the awarding of costs. However, he did not say with any clarity whether it is intended that costs will be assessed individually on a principle of what is equitable, or on time and money expended, or on the basis of some form of tariffa sort of shorthand assessment procedure whereby an applicant or respondent is entitled to so much for an appearance at a tribunal. I shall speak for a moment longer, in the hope that the Minister will intervene and clarify that matter.
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