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Employment Rights (Dispute Resolution) Bill [H.L.]

6.2 p.m.

Report received.

Clause 5 [Legal officers]:

Lord Archer of Sandwell moved Amendment No. 1:

Page 3, line 45, leave out from ("for") to end of line 2 on page 4 and insert ("the words "provide that" onwards substitute "provide--
(a) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done by the person mentioned in subsection (1)(a) alone, and
(b) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done").

The noble and learned Lord said: My Lords, with this amendment it may be convenient to your Lordships if we discuss also Amendments Nos. 2 and 11. In Committee a number of noble Lords expressed concern about the extent of the powers which were to be entrusted to legal officers. I indicated my understanding,

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and my noble friend Lord Haskel confirmed, that the intention of the Government was to confer on legal officers a limited range of functions in order to relieve chairmen for other work. They would not conduct full tribunal hearings. They would not conduct pre-hearing reviews nor determinations under Clause 2. As I understand it, the kind of tasks which the Government had, and have, in mind, are disposing of cases which are settled or withdrawn; considering applications for postponements; extending time limits; making orders for further and better particulars and dealing with discovery of documents.

As my noble friend explained, the intention is to conduct a pilot scheme and to abstain from concocting a hard and fast list until it is possible to study the outcome of that scheme. However, the Government's intention is not made clear in this Bill and there were those of your Lordships who felt that, if the power was not intended to be widely exercised, it should not be widely taken.

The noble Lord, Lord Lester, has tabled an amendment to confine the jurisdiction to interlocutory orders or decisions on an interlocutory matter. I understand and sympathise with the noble Lord's wish to indicate in the Bill that the powers of legal officers are not intended to be coterminous with those of chairmen. The noble Lord will, of course, speak to his amendment in due course, but it may assist if I explain now what I understand to be the Government's difficulty with it. My noble friend Lord Haskel will correct me if I have misunderstood. I hope, however, that I have understood it correctly because I share the difficulty.

Amendment No. 2 would simply be too restrictive. It is not wholly clear what is "an interlocutory matter", but it is not self-evident that issuing an order to dismiss proceedings where the application has been withdrawn is an interlocutory matter. Similarly, issuing a decision where a settlement has been reached is probably not an interlocutory matter although as far as I am aware it has not been decided. I cannot believe that anyone would wish to exclude those functions. However, I agree with the noble Lord, Lord Lester, that there should be some indication in the Bill that the power to confer functions on legal officers is not intended to be coterminous with the jurisdiction of the chairmen.

I am most grateful to my noble friend Lord Haskel and his officials because they have advised me on this matter, which is not an easy one. I hope that noble Lords will forgive me if I now spend a few moments on the technicalities.

Section 4 of the Industrial Tribunals Act 1996 draws a distinction between a chairman being a tribunal for certain purposes or part of a tribunal, and a chairman acting for a tribunal. Perhaps I may paraphrase. Subsection (1) provides that normally a chairman and two other members, or in certain circumstances one other member, constitute a tribunal. The chairman is a tribunal (even when sitting alone) in the circumstances set out in Section 4(2) and, exercising that jurisdiction, he may conduct a full hearing in the circumstances set out. Under subsection (6) he may be authorised by regulations to act for a tribunal for certain purposes.

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By Rule 6 made pursuant to the power conferred by that subsection, he can make orders for discovery and conduct pre-hearing reviews and he can make witness orders. He does that not as the tribunal, but for the tribunal.

The Bill does not seek in any way to amend the provisions of subsections (1) and (2). It is only a chairman who can form part of a tribunal under subsection (1) or who can constitute a tribunal under subsection (2). The Bill will not alter that position. As presently drafted, the Bill states that the person who may be authorised to act for a tribunal under subsection (6)--that is, a person who may deal with certain matters falling short of a full hearing--may be either a chairman or a legal officer. As my noble friend Lord Haskel explained, it was never the intention that the jurisdiction conferred on them under that subsection should be the same for chairmen and legal officers. However, that intention does not appear on the face of the Bill.

My amendment seeks to make it clear that there are intended to be two lists of functions authorised under subsection (6)--one for chairmen and a different one for legal officers. My amendment does not seek to specify what those respective lists should comprise. That is the whole purpose of providing for regulations. However, the amendment seeks to make the position clear.

I take further comfort from what I believe to be the Government's intention--I hope that my noble friend, Lord Haskel, will confirm this--that, before any regulations are drafted, the Government will consult fully with the respective tribunal presidents for England and for Scotland and with the Council on Tribunals and, accordingly, I declare an interest. I should add that the amendment has been discussed with the respective tribunal presidents for England and for Scotland and that my understanding is that they are content. In those circumstances, the noble Lord, Lord Lester, may feel able not to press his amendment, but I await his reaction with interest. I beg to move.

Lord Lester of Herne Hill: My Lords, I am extremely grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very useful explanation and his sympathy for the object of my amendment. I shall speak to Amendments Nos. 1 and 11 and at the same time to Amendment No. 2 which stands in my name and that of the noble Lord, Lord Renton. When the Bill was in Committee I was one of those who expressed concern about the breadth of the delegated powers conferred by Clause 5 to empower the Department of Trade and Industry to use subordinate legislation to authorise legal officers to exercise any of the judicial powers, so it seemed, conferred on the chairmen of industrial tribunals. This appears to be one issue that escaped the very careful scrutiny of the Delegated Powers Scrutiny Committee which in its report did not comment upon the breadth of the powers contained in the Bill.

As an object lesson it is perhaps worth spending a moment or two on the history of the matter. The Notes on Clauses on Clause 5, as pointed out in Committee, were expressed much more narrowly than Clause 5 itself, being confined to interlocutory matters. Since the

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Committee stage a number of important letters have been sent to the noble and learned Lord, Lord Archer of Sandwell, myself and no doubt the Government. In one of them, from a Mr. Webster, the secretary to the Association of Industrial Tribunal Chairmen (Scotland), it is explained that nothing in the Green Paper of the previous government or the consultation document indicated that legal officers were intended to have the very broad powers conferred by Clause 5. Similar concern was expressed by the new president of the Industrial Tribunal of England and Wales, Mr. John Prophet, and by the President of the Industrial Tribunals (Scotland), Mrs. Doris Littlejohn. That is the background.

Your Lordships will remember that during Committee stage the noble and learned Lord, Lord Hope of Craighead, the former Lord President, made an important intervention which led me to be content with Clause 5 as it stood. Since then he has very kindly approached me. He asks me to apologise for the fact that owing to a prior engagement in Edinburgh he cannot be present during the debate this evening. But he has asked me to refer to two particular points that he would himself have made this evening had he been able to have been present. I hope that your Lordships will forgive me if I quote his letter rather than paraphrase it. He writes:

    "The first is that there is, in my experience, a critical distinction between orders which relate to interlocutory matters--to matters of incidental procedure--and matters which involve questions of law or questions where the facts may be in dispute. The range of issues which may fall within the description of incidental procedure is very wide and probably incapable of precise definition in primary legislation. That is why I said that it would be unwise to try to define this too precisely in the clause. But if there is the slightest risk that the power which is given by this clause will be used to enable legal officers to decide matters which involve questions of law or questions where the facts may be in dispute, it should be met by a qualification in the clause to prevent the power from being exercised in this way.

    "The second point is that the experience to which I referred at the Committee stage was that when I was a senior judge in charge of a rule-making function which had been delegated to the court itself. It was possible for me in that capacity to exercise a close judicial scrutiny over the detail of the rules which enabled the clerks of court to deal with matters of incidental procedure, in order to ensure that the issues which required a judge's decision were not dealt with in this way. In practice therefore it was left to the judges themselves to decide what matters could safely be delegated. In such a system, with careful handling, the system of delegation had advantages in the saving of time and money. So I was able to support the idea in principle, and--with careful attention to the detail--to achieve results which were acceptable.

    "As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations made under Section 4(6) of the 1996 Act and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified".

I do not apologise for reading out that letter because it comes from the highest possible authority with great experience. The question before the House in regard to Amendment No. 1 is whether it deals with the position satisfactorily. I accept that the amendment is a great improvement in that it will ensure that the subordinate legislation will describe the functions to be given respectively to the chairmen and to legal officers.

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Furthermore, if the Minister gives an assurance that there will be widespread consultation with the tribunal chairmen, the Council on Tribunals and users of the system, that is to say, advocates, employers and trade unions--representatives of the consumers--that will go a great deal towards meeting the concerns that a number of noble Lords have expressed.

The question then is whether one should seek to go further and fetter the powers by limiting them to the making of interlocutory orders and dealing with interlocutory matters. I have heard what the noble and learned Lord has said about the problem of definition. I am bound to say it is not my experience at the Bar that there is the slightest difficulty under the Rules of the Supreme Court in deciding what is or is not an interlocutory matter. But I appreciate that there may be something encrusted in the legislation which makes it peculiarly awkward for the draftsman to do the necessary surgery and to stitch up after the surgery.

I welcome the first amendment and support it, but I am anxious to hear what the Minister says about the concerns of the noble and learned Lord, Lord Hope, and how to avoid the mischief to which he refers before I make up my mind as to what to do with the amendment standing in my name and that of the noble Lord, Lord Renton.

6.15 p.m.

Lord Renton: My Lords, I have a long-standing engagement some distance from your Lordships' House and I am afraid that I must leave in four minutes' time. I hope that I may be forgiven for making a very brief intervention. I appreciate the immense amount of trouble that the noble and learned Lord, Lord Archer, has taken in tabling Amendment No. 1. I believe that it does no harm but does not do quite enough good. There is an element of uncertainty about it which is something that often troubles Members of your Lordships' House.

This is a revising Chamber for primary legislation but it deprives itself of any authority with regard to making another place or the Government think about secondary legislation. The effectiveness of Amendment No. 1 depends upon the contents of regulations over which we have no influence. I have that doubt about Amendment No. 1.

I believe, however, that Amendment No. 2 is essential. I am very grateful to the noble Lord, Lord Lester, for drawing my attention to it beforehand so that I can add my name. I fully support the amendment because in a direct way it limits the powers to delegate to a legal officer, who may not be a person of great experience or standing, to interlocutory matters. I believe that is reasonable and necessary and I very much hope that, whether we get a full reply or not on these points tonight, the Government will, nevertheless, consider very carefully in the further stages of this Bill the desirability of accepting Amendment No. 2.

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