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Standing Committee F
Thursday 13 December 2001
[Mr. Joe Benton in the Chair]
Mr. Philip Hammond (Runnymede and Weybridge): I beg to move amendment No. 41, in page 34, line 20, at end insert
'(2A) Where employment tribunal procedure regulations include provisions enabling the President to make directions about the procedure of employment tribunals they shall also include provision requiring the President to consult with such users and representatives of users of the employment tribunals as appear to him to be appropriate before making such directions'.
The amendment would require that, where employment tribunal procedure regulations include provision to enable the president to make directions about procedure, they should also require the president to consult representatives of users of the tribunal service. I understand that tribunal user groups are established in all tribunal regions in England and Wales, so bodies are available to be consulted.
I hope that what I propose is not controversial. In the past couple of years I have been used to dealing with health and social services Bills in Standing Committee. Most, if not all, of those Bills have from the outset included provisionswhich are not terribly onerousrequiring the Secretary of State to consult those who appear to him to be relevant, before issuing the orders in question. That approach is at least a gesture towards open government and an attempt to take into account the properly expressed views and interests of those likely to be affected by an order. It goes some way towards dealing with a problem that we have with respect to the practice directions.
The principle of practice directions can be discussed on clause stand part. However, the Minister will appreciate that, while the Opposition have a natural concern about secondary legislation, which does not receive the same scrutiny as primary legislation, the practice directions are tertiary legislation. Once the regulation to allow practice directions has been debated here, the directions themselves will not be subjected to parliamentary scrutiny. It is therefore important to ensure that, in making such directions, the president takes account of the legitimate views of user groups and others who will be affected by them.
I am prepared to concede that the matter in question can properly be dealt with in regulations. However, once again, the architecture of the Bill forces the Opposition to explore issues by way of an amendment. I hope that the amendment will enable the Minister to provide a categorical assurance that the regulations
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will include a requirement for the president to undertake consultation before issuing a practice direction.
The Minister for Employment and the Regions (Alan Johnson): Clause 27 is important to ensure the use of existing best practice throughout the country. In the ruling on Eurobell Holdings plc v. Barker, the employment appeals tribunal stated that it was undesirable for different directions to apply to different employment tribunal regions. At the moment, presidents cannot issue practice directions. The responses to ''Routes to Resolution'' were overwhelmingly in support of giving presidents the power to issue practice directions, to help provide consistency in different tribunal regions.
Only one of the organisations that responded even mentioned consultation, but I accept that, on some occasions, practice directions will not seek to extend existing best practice and will cover new ground. Sometimes, presidents may think that it is appropriate to consult. However, it is for them to judge, just as it is for employment appeal tribunals, which can issue practice directions, to decide whether to consult. Nothing in clause 27 prohibits consultation, but presidents should not be required to consult on each and every occasion, as amendment No. 41 clearly requires them to do. The regulations will clarify the position, so the amendment should be withdrawn.
Mr. Hammond: I am deeply disappointed by the Minister's response. He says that practice directions will not always merely seek to extend best practice. However, it is not obvious that it is unnecessary to consult on practice directions that do seek to extend best practice, and people may not agree on what extends best practice. Subsection (2) of proposed new section 7A explicitly states:
''Employment tribunal procedure regulations may, instead of providing for any matter,''--
that is, rather than the substance of the matter being included in regulations that will be subject to the, admittedly lame, parliamentary scrutiny procedure for statutory instruments
''refer to provision made or to be made about that matter by directions''.
As I understand subsection (2), we can go from primary legislation to substantive regulation without any further parliamentary scrutiny. That is a serious issue. I anticipated that the Minister would say that he would expect presidents to consult users of tribunals, as a matter of course, before introducing practice directions. It is extraordinary if the Minister envisages that the tribunal president should ever want to make a practice direction without talking to the recognised and established user groups, who represent all parties who use the tribunals. I should have thought that the Minister would readily concede that in principle, even if he does not want to be bound by including a provision to that effect in the Bill.
The Minister did not say that, even in principle, he would expect presidents to consult as a matter of course. That is an extraordinary position for a Government who are apparently committed to
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openness and accountability to take, so I am deeply disappointed by his response. However, looking around me, I am not minded to press the amendment to a Division.
Mr. Mark Prisk (Hertford and Stortford): Quality is more important than quantity.
Mr. Hammond: Indeed, but unfortunately our voting procedure does not recognise that simple truth. I am minded to withdraw the amendment, but I ask the Minister to reflect on what I have said. I genuinely did not believe that my amendment would be controversial and I expected the Minister to deal with it in two minutes by saying that he would, of course, expect presidents routinely to consult recognised user groups, but that it was unnecessary to include such a provision in the Bill. I am alarmed that the Minister seems to suggest that consultation will not be normal practice, and I shall probe the Government again on that issue on Report. I hope that he will consider the logistics of such a consultation procedure with the presidents, and perhaps conclude that the requirement would not be terribly onerous. It would certainly satisfy user groups that have expressed concern about having an opportunity to make their views known on any proposed directive.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Hammond: I revert to the important point of principle raised by the clause. In practice, the directions will be under tertiary legislation and not subject to parliamentary scrutiny. That is bad enough, but proposed new section 7A(2) of the Employment Tribunals Act 1996 appears to enable the practice directions to be used as a substitute for regulations, and thus to allow substantive procedural regulation to be imposed without the opportunity for scrutiny in the House or another place.
The regulations may provide that practice directions rather than the regulations themselves substantively deal with certain matters. If so, we need to press the Minister to tell us what he intends to delegate to the presidents in that way. We shall definitely not have an opportunity to scrutinise those matters, as statutory instruments on them will not come before the House. We could discuss those matters now if he would let us know why proposed new subsection (2) was needed and what subjects he wanted to deal with under it.
Alan Johnson: I hope that I can set the hon. Gentleman's mind to rest. He raises an important point that I will consider further. However, the provision was supported widely. We do not intend to interfere in any way with how presidents decide that they can ensure best practice throughout their jurisdiction. There is one president for Scotland, and one for England and Wales.
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The explanatory notes give a couple of examples of what we are thinking of. According to them,
''rule 4 of the main Employment Tribunals Rules of Procedure''
allows discretion and
''says that a tribunal may issue directions''.
Rule 17 states that tribunals
''may extend certain time limits''.
It is our old friend ''may'' rather than ''shall''. Discretion is allowed. The explanatory notes also state that, in the case of Eurobell Holdings plc v. Barker, the employment appeals tribunal said that it was undesirable that the employment tribunals service
in Birmingham, for instance, should take that discretion, issue a set of directions and set a precedent in an area that was not followed by the employment tribunals service in London. We are considering such problems.
I shall consider the point about tertiary legislation further, but we have nothing to fear. In the case of Eurobell Holdings plc v. Barker, the employment appeals tribunal said, according to the explanatory notes,
''that it was undesirable that employment tribunals should adopt different practices...in different regions''.
Unlike the third presidentthe employment appeals tribunal presidentemployment tribunal presidents are not currently allowed to issue practice directions, but the Bill deals with that inconsistency.
The provisions are sensible. On occasion, presidents will consult user groups. Although I shall consider the matter further on Report, I hesitate to say that I believe it right in principle for them to consult in such circumstances. We would not want to interfere in an employment appeals tribunal process that worked perfectly well. We see the need for the provisionindeed, an EAT ruling suggested it. Everyone who responded to the consultation supported it and only one organisation mentioned consultation. The hon. Gentleman raised an important point, and it is proper for him to do so, but after the explanations that I have given him he should feel reasonably relaxed that no huge issue of principle is involved. However, I will consider the points that he made further on Report.