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

8.20 p.m.

Read a third time.

Clause 3 [Hearings etc. by chairman alone]:

Lord Archer of Sandwell moved Amendment No. 1:

Page 2, line 38, leave out ("(4)") and insert ("(4A)").

The noble and learned Lord said: My Lords, with this amendment, it may be for the convenience of your Lordships to discuss Amendments Nos. 1 to 8, 21 and 24. It will certainly be in the interests of expedition.

With this group of amendments we return to a discussion which has occupied your Lordships on a number of earlier occasions. The principle of relieving senior judicial officers of part of their burden by delegating that work to less senior officials probably with less experience and fewer qualifications was not invented for the purpose of this Bill. At least since the 14th century the Lord Chancellor was assisted by magistri cancellarii--the earliest chancery masters. Many of us in your Lordships' House have passed happy hours in the Bear Garden arguing before Masters of the Supreme Court matters with which it was not deemed necessary to trouble a High Court judge. And if cases are to be heard more quickly, it would be sensible to relieve chairmen of part of their burden if that can be done consistently with proper standards.

If your Lordships accept that reasoning, there remain two questions. First, what powers may properly be given to these officials whom we are calling legal officers? Secondly, how far should we seek to define those powers rigidly in primary legislation? On the first question I suspect that we are largely in agreement. But this is an experiment. I do not claim that every provision in the Bill is right for all eternity. I am wary of seeking to set it all in stone in every detail.

For myself I welcome the Government's intention as stated in our earlier debates by my noble friend Lord Haskel to conduct a pilot scheme, and a pilot scheme would be pointless unless we left some flexibility to take advantage of what was learned from that scheme.

That brings us to the second but related question: how far then should we define the duties and powers of legal officers in primary legislation? It is always a question of balance how far Parliament should delegate to Ministers a wide discretion. If the delegated powers are too wide, they may be abused by some future administration, or used in a way which Parliament would not have intended. If they are too narrow, there may one day transpire to be a situation for which we failed to make provision. As a colleague is reputed to have said in another place, "Prediction is always difficult especially when it relates to the future".

Legislation which leaves no flexibility is likely to produce a situation where everyone agrees what should be done but no one has power to do it. In our earlier debates, the noble Lords, Lord Lester, and Lord Renton--I see that at present the noble Lord, Lord Renton, is not in his place--were critical of the wide powers delegated to the Executive under Clause 5 as

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originally drafted. I agree that there is force in that observation. Indeed, I tried to go some way towards recognising it by moving an amendment on Report.

If I may interrupt myself, perhaps I may correct one slip in the record of that debate which arose no doubt because I was muttering inaudibly at the time. The noble Lord, Lord Lester, commented that the Scrutiny Committee had failed to comment on the breadth of those powers. When I replied, I am accused in the Official Report of saying,

"I accept what the noble Lord said: that the Scrutiny Committee overlooked this point. As a member of that committee I must share some of the blame, and I do so".--[Official Report, 20/4/97; col. 702.]

What I actually said, as I am sure the noble Lord will recollect, was,

"If the Scrutiny Committee overlooked this point I must share some of the blame".

I have subsequently checked, not least because my attitude to possible amendments to the Bill would be strongly influenced by the views of the committee. In its fourth report, the committee noted that certain clauses including Clause 5 made amendments to the Act of 1996 which modified the existing regulation-making power, but without affecting parliamentary control. It commented that some of the changes are important, but that none appeared to raise questions which the committee thought necessary to draw to the attention of the House. The noble Lord is entitled to disagree with that judgment, but it was not by oversight.

So where should the balance lie? The noble Lord, Lord Renton, has tabled an amendment which substantially repeats the amendment tabled on Report by the noble Lord, Lord Lester, and concerns legislating to empower legal officers to make interlocutory orders. I recall that, unhappily, the noble Lord, Lord Renton, had to leave before the conclusion of that debate for unavoidable reasons, but if he has read the report of that subsequent debate he will have seen that there are some duties which, as I understand it, no one would wish to preclude legal officers from undertaking and which are almost certainly not included in the term "interlocutory"--for example, making an order dismissing proceedings where the application has been withdrawn.

I understand that it is with a view to meeting that difficulty that the noble Lord, Lord Lester, has tabled his amendment. The noble Lord seeks to deal with the matter by writing into the primary legislation a list of all the powers and functions which the regulations may confer on legal officers. I hope he will forgive me if I make two comments on that.

First, if we specify in detail in primary legislation what the regulations are to say, there is no point in giving power to make regulations. The whole purpose of delegated legislation is that it should confer a degree of flexibility which could not be achieved by writing the entire context into the primary legislation.

I appreciate, of course, that the noble Lord's amendment does not seek to compel the Secretary of State to include in the regulations all the powers listed

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in his amendment. His amendment seeks to write into the Bill a list of powers and permit the Secretary of State to leave some of them out. But that would be the full extent of the Secretary of State's discretion under the noble Lord's amendment. I believe that that solution would lack the very flexibility which a regulation-making power is intended to create.

But there is a further difficulty about the noble Lord's solution. The procedures of the tribunal, the kind of orders which may be made either by or for a tribunal, are set out in regulations. The functions listed in the noble Lord's amendment are conferred on tribunals by regulations.

It is rarely if ever good practice to refer in primary legislation to matters for which provision is made in secondary legislation, as I am sure the noble Lord, Lord Renton, would agree. The reason for that is that the secondary legislation may from time to time be amended, so the primary legislation may be left making reference to a process which no longer exists or which is no longer in the same form. If the secondary legislation is amended to provide for a new process, the primary legislation will make no reference to it.

Perhaps I may offer an example. Only recently, the regulations were amended to confer on tribunals a power in effect to order interrogatories. I make no judgment as to whether legal officers ought or ought not to have power to order interrogatories. But if this Bill had already been on the statute book when those regulations were amended, and had it been in the form proposed by the noble Lord, Lord Lester, no one would have had power even to consider whether that function should be conferred on legal officers in the absence of new primary legislation to amend this Act. I do not believe that that is a situation which the noble Lord would wish to bring about.

My Amendments Nos. 5 and 8 are designed to meet the anxieties expressed on Report by specifying on the face of the legislation what a legal officer may not be empowered to do. He would not be empowered to carry out a pre-hearing review, nor any of the new procedures under Clause 2 of the Bill. He would have no power to determine proceedings except where an application has been withdrawn or the parties have reached a settlement.

And of course he would not have to be empowered to determine all proceedings even in those circumstances. He could be empowered to determine proceedings where the parties have reached a settlement in some circumstances but not in others. As my noble friend Lord Haskel has said more than once, the regulations would not be made without full consideration and consultation with those concerned.

I am indebted to the Employment Lawyers Association for advice on this Bill. I believe that the noble Lord, Lord Lester, has very good and close relations with that association. In our earlier debates he quoted from letters. I hope he will forgive me if I read from a letter which I have received from the association. It states:

"We have carefully considered whether it is preferable to identify in the Bill the powers which Legal Officers may not exercise, or to list those powers which they may exercise. We can see arguments for both approaches. However, we consider that the latter approach

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(i.e. to list the powers which they may exercise) carries with it two dangers ... First, it risks omitting from the list powers which currently exist and which it may be thought appropriate to be exercised by Legal Officers ... Secondly, if further interlocutory powers were given to Tribunals by amendment of the Tribunal Rules, it would then become necessary to amend the Act to enable Legal Officers to exercise such powers. For example, in recent years, the Rules were amended to permit orders requiring parties to answer questions"--

the example to which I just referred.

"This is the type of order which, in an appropriate case, could be made by a Legal Officer. If such a new power was granted in future, it would be unfortunate if an amendment to the Act were necessary, failing which the Legal Officer could not exercise such a power".

With the assistance of the Government, I have tried to meet the concerns of the noble Lords. I hope that they will feel able to accept the proposal embodied in my amendments.

Perhaps I may add that the other amendments in this group which I hope to move are consequential on those proposals, or an attempt to tidy up drafting anomalies which came to light during our deliberations. If your Lordships wish for a fuller explanation, I will of course be happy to provide it; but I suspect that it may not increase my popularity rating. Amendment No. 1 is one of the consequential amendments. I beg to move.

8.30 p.m.

Lord Lester of Herne Hill: My Lords, I wish to speak to these amendments, together with Amendment No. 6 standing in my name and Amendment No. 7 standing in the name of the noble Lord, Lord Renton. I am grateful to the noble and learned Lord--

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