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Lord Archer of Sandwell: I do not think that that is being suggested. However, I would not like to give a definitive answer without seeing the exact nature of the pleadings, which I have not as yet been able to do. Nevertheless, I take the point that the noble Lord makes. It is possible that they do not deal directly with that point, but they certainly impinge very widely on the debate that has just taken place.
Lord Haskel: Perhaps Members of the Committee will understand my reluctance to come between such eminent lawyers as regards matters of European law. I thank my noble and learned friend Lord Archer who eloquently addressed the complex legal question in relation to the issue. I can confirm that the Government need to wait until the European Court of Justice has given its decisions on these cases before addressing the question of references to that court. If, in the light of the decisions from the European Court of Justice, it is considered appropriate to provide for references to the European Court of Justice, I can assure Members of the Committee that the Government will do so. I noted what my noble friend Lord Wedderburn and the noble Lord, Lord Lester, said and can confirm that the Government will give serious consideration as to whether the Employment Appeal Tribunal would be the appropriate court to consider such matters in the first instance.
Lord Wedderburn of Charlton: In order to make progress I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 16
The noble Lord said: I shall speak briefly to Amendments Nos. 16 and 17. Again, part of the thrust of the amendments has congealed in our rambling debates around various previous amendments. The central point of both amendments is as follows. Where a party, or the arbitrator, sees that there are reasonable
When I think back to the amendment we have just dealt with, I can quite understand the objections which have been made about the Employment Appeal Tribunal in previous discussions. However, with respect, I do not believe that they apply in this respect. No Members of the Committee have dissented from the view that the EAT is a judicial body of quite unusual character with a High Court judge and two wing persons all of whom are senior in their understanding of industrial relations employment law. That would be a suitable body to hear or determine an application made to it on such a matter, or to give such direction or remedy as it "considers appropriate", to use the words of Amendment No. 17.
Both amendments suggest that the Secretary of State should make regulations or an order providing for the application of Part X of the 1996 Act on unfair dismissal and state that this should be the only route and remedy. In other words, our text would cut off the remedy of judicial review to the High Court because we have provided an avenue to the Employment Appeal Tribunal. Of course, I appreciate the view that has been put to me as regards both amendments; namely, that the normal appellate route from the EAT to the Court of Appeal and the House of Lords would remain open. It would not be proper to cut that off in any way or even to suggest that one could do so.
However, in the normal case, one has to find an answer to the question: what do you do where, with the best will in the world, the arbitrator has been led astray when dealing with a sex discrimination case, an equal pay case, or whatever? I am now falling into the pit of my noble and learned friend's area of Wednesbury unreasonableness. It can happen, but what are we to do about it? As far as we know, the Bill and the draft scheme do not tell us. The amendments are a suggestion of an answer to the problem. I have not yet heard any answer forthcoming from anywhere. Such suggestions do not depend on any cases which are awaiting decisions from Luxembourg or anywhere else; they are immediate suggestions to solve an immediate problem in the Bill. If it is not solved, as I said earlier, the Bill's arbitration system may well founder on a Grunwick type of case. That would be most unfortunate. The amendments are meant to avoid such a situation. I beg to move.
Lord Archer of Sandwell: I confess to a feeling of deja vu. I believe that we had this part of the debate earlier in the evening. There is certainly a wide area of agreement between my noble friend and myself and indeed my noble friend Lord Haskel. We need a safety valve but I am not sure about the extent of such a safety
The second matter which requires a little further thought is what would be the immediate channel to proceed to from the tribunal. Whether it should be the EAT which is certainly eminently qualified to deal with mistakes of law or whether it should be the High Court which deals with mistakes in procedure is something which, again, requires perhaps a little more thought. My noble friend is absolutely right to say that we will probably have to make some decision on the matter. A possible solution would be to leave the matter to ACAS and its scheme and to the Secretary of State in the order that he makes. I can see some Members of the Committee shaking their heads at that suggestion and I suspect that, if I were not actually presenting the Bill, I might be doing the same. As I said, I should like to have further discussions on the matter. I have outlined the two areas where I believe further discussions are required. I hope that my noble friend will not press the matter tonight.
Lord Haskel: I shall speak to Amendments Nos. 16 and 17. The Government certainly agree that a safety valve is necessary. That is why we are minded to use the serious irregularities provisions of the arbitration Act, subject to consultation with ACAS. In that way the Government will ensure that the rights of individuals are protected. As my noble and learned friend Lord Archer said, the remedies might be set out in the scheme itself. I should like to stress that they are likely to be the same as those in Part X of the Employment Rights Act 1996. However, we shall take note of the points made by my noble friend and my noble and learned friend and consider the matter further.
Lord Wedderburn of Charlton: I am grateful to my noble friend the Minister for his comments. I believe it is the first time we have agreed that a solution must be found in this Bill, or, as he says, in the scheme. I am tempted to read Section 68--but I shall not--of the Arbitration Act which concerns irregularity. However, I shall leave that for the Committee's bedtime reading because the types of irregularity set out in Section 68 go far wider than Wednesbury unreasonableness and concern ultra vires provisions or a lack of procedural fairness. It is difficult to see how they can apply to this kind of arbitration. However, I note that the Government wish to consider the section and they have the power under Clause 7(6) to amend the Arbitration Act if they wish to adopt it as amended. That could form the basis of something useful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17, 18, 19 and 20 not moved.]
Lord Archer of Sandwell moved Amendment No. 21:
The noble and learned Lord said: The expedition with which we have dealt with the previous few amendments rather overtook me. I have already spoken in effect to this amendment. I do not think it is controversial and I have explained it twice in the course of our debates. I beg to move.
On Question, amendment agreed to.
Lord Wedderburn of Charlton moved Amendment No. 22:
Page 6, line 14, at end insert--
("(5A) A scheme under this section shall provide that, where a party claims on reasonable grounds that the arbitration award contains or is based upon a serious error of law or some other ground which might have been cause for judicial review, that party may apply within one month after the date of the award to the Employment Appeal Tribunal which, if it gives leave, shall have jurisdiction to hear and determine the application.
(5B) The Secretary of State shall make an order providing for the jurisdiction of the Tribunal under subsection (5A) and shall in particular provide that the remedy for a complaint shall be the remedy stated in subsection (5A) and not otherwise.").
Page 6, line 43, leave out ("which") and insert--
("(10) No order shall be made under subsection (1)(b) unless a draft of the statutory instrument containing it has been laid before Parliament and approved by a resolution of each House.
(11) A statutory instrument containing an order under this section (other than one of which a draft has been approved by resolution of each House of Parliament)").
7.45 p.m.
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