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Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend for what he has said, particularly for the last sentence. Once again I have to declare an interest. I am also grateful to the noble Lords, Lord Lester and Lord Renton, both for their conciliatory attitude and for their courtesy in telling me beforehand what was in their minds.

It is almost churlish perhaps for me to make a point in the circumstances, but I could not resist doing so. The noble Lord, Lord Lester, said that he hoped that the Government did not have in mind to confer on legal officers any powers other than the ones which were included in his list. I remind him that in the letter to which he and I referred there were two examples of

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additional powers which neither of us had thought of. I shall not go into detail, but one was an exchange of lists.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I appreciated that. What I had intended to say and had hoped that I had said is that in addition to my list I hoped that the matters that had been referred to in that letter were the only other matters that the Government had in mind at the moment. That was for the good reason that otherwise Parliament would not be properly informed as to the Government's intentions. I did not confine it to my list, or did not mean to do so.

While on my feet, perhaps I may also make it clear that I did not wish in my earlier speech to criticise the Delegated Powers and Deregulation Committee, for whose work I have unbounded admiration. However, I doubt whether even its members are capable of anticipating all circumstances in which over-broad powers may be sought. It seems to me that what has happened in this case indicates that they may have nodded slightly on this occasion by not appreciating the need for the amendment that the noble and learned Lord has now brought before the House.

Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for both those clarifications. Perhaps I may adopt the point which he made in relation to the latter question, to reinforce what I was saying about the earlier matter. The point I was making was not that here was a power which had not been included, but that the fact that we are all at this stage thinking of matters which had not occurred to us earlier should not lead us to conclude that we have now thought of all the matters and that no one will ever think of another one. That was the only point I was making.

The noble Lord, Lord Renton, rather indicated that we have overloaded my amendment with detail. We were trying to balance an absence of detail--I have always supported the views of the noble Lord and his committee in relation to the importance of simplicity--against writing in the safeguards for which he and the noble Lord, Lord Lester, were arguing. I thought we had the balance right.

I wish to raise just one further matter. It may be that I was being somewhat dim and misunderstood the noble Lord. I thought he said that he was concerned that the regulations referred to in Clause 7 were to be made by the chairman. They are of course to be made by the Secretary of State. I apologise if I misunderstood him.

Lord Renton: My Lords, perhaps the noble and learned Lord will forgive me for intervening. I was referring to Clause 5. Fortunately he has cut out that part of Clause 5 with which I found difficulty. At the bottom of page 3 the Bill states that,

    "regulations to be done by a tribunal may be done by the chairman alone."

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It worried me that the chairman alone should take on such a tremendous responsibility. However, the noble and learned Lord has left that out and replaced it with something which I find more acceptable.

Lord Archer of Sandwell: My Lords, perhaps this is not the moment to take that debate further but I am grateful for the elucidation. I would have been prepared to defend the text even before my amendment. I hesitate to say that the matter is academic because some of my closest friends are academics. However, the matter no longer arises for your Lordships.

Nothing remains but for me to wholly endorse the tribute which the noble Lord, Lord Lester, paid to Mr. Paul Goulding. I have been grateful for his help both on this Bill and on other occasions.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendments Nos. 2 to 4:

Page 3, line 14, at end insert--
("(4A) Omit paragraph (f) (which specifies proceedings in which the person bringing the proceedings has given written notice withdrawing the case), apart from the word "and".").
Page 3, line 22, after ("(3C)(a),") insert--
("( ) the carrying-out of pre-hearing reviews in accordance with regulations under subsection (1) of section 9 (including the exercise of powers in connection with such reviews in accordance with regulations under paragraph (b) of that subsection),").
Page 3, line 28, leave out ("as provided by that subsection") and insert ("by the person mentioned in subsection (1)(a) alone").

The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 2 to 4 en bloc.

On Question, amendments agreed to.

Clause 5 [Legal officers]:

Lord Archer of Sandwell moved Amendment No. 5:

Page 3, line 42, leave out from beginning to end of line 10 on page 4 and insert ("After subsection (6A) of section 4 of the Employment Tribunals Act 1996 (which is inserted by section 3(5) of this Act) insert--
"(6B) Employment tribunal procedure regulations may (subject to subsection (6C)) also provide that any act which--
(a) by virtue of subsection (6) may be done by the person mentioned in subsection (1)(a) alone, and
(b) is of a description specified by the regulations for the purposes of this subsection,").

On Question, amendment agreed to.

[Amendments Nos. 6 and 7 not moved.]

Lord Archer of Sandwell moved Amendment No. 8:

Page 4, line 14, at end insert--
("(6C) But regulations under subsection (6B) may not specify--
(a) the determination of any proceedings, other than proceedings in which the parties have agreed the terms of the determination or in which the person bringing the proceedings has given notice of the withdrawal of the case, or
(b) the carrying-out of pre-hearing reviews in accordance with regulations under section 9(1)."").

On Question, amendment agreed to.

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Clause 7 [ACAS arbitration scheme]:

Lord Archer of Sandwell moved Amendment No. 9:

Page 6, line 25, at end insert--
("( ) A scheme set out in an order under this section may, in relation to an arbitration conducted in accordance with the law of Scotland, make provision--
(a) that a reference on a preliminary point may be made, or
(b) conferring a right of appeal which shall lie,
to the relevant court on such grounds and in respect of such matters as may be specified in the scheme; and in this subsection "relevant court" means such court, being the Court of Session or the Employment Appeal Tribunal, as may be specified in the scheme, and a different court may be specified as regards different grounds or matters.").

The noble and learned Lord said: My Lords, the purpose of Amendment No. 9 is to make for Scotland a provision which the Bill already makes for England and Wales. The reason the Bill has to provide for that in different terms is that the existing law which is to be amended is different in the two jurisdictions.

The purpose to be addressed is to make provision for challenges to arbitration awards. We are addressing the power which the Bill gives to ACAS to prepare a scheme and to the Secretary of State to make an order bringing it into effect. The power which it is proposed to give is a wide one. There may be differences of opinion as to what use should be made of the power and where the balance should lie between the respective advantages of reviewability and finality.

I know that some of my friends would like ACAS and the Government to make a wider use of the power than they seem disposed to do. Amendment No. 9 relates not to the use which is to be made of the power, but to the width of the power itself. As presently drafted, the Bill would permit the inclusion of any of the challenges and appeals set out in Sections 67, 68 and 69 of the Arbitration Act. That relates to England and Wales.

As my noble friend Lord Haskel explained at Report stage, in England and Wales the Government propose to use Section 68 of the Arbitration Act with such modifications as are necessary for the purpose. They and ACAS propose to include in the scheme a remedy in respect of serious irregularity as defined in that section and such wider remedies as may be required by European law. As I understand it, the Government's intention is that the position should be as nearly identical in England and Wales on the one hand and in Scotland on the other as it is possible to achieve.

It was my noble friends Lady Turner and Lord Wedderburn who first alerted us to the problem of jurisdiction in Scotland. My noble friends expressed concern as to which court should exercise that remedial jurisdiction. We are probably agreed that where the complaint relates to procedural errors, the High Court is experienced in dealing with matters of that kind. But where a question of substantial employment law is involved, the court with greater experience of that is the Employment Appeal Tribunal.

I was readily persuaded of the validity of my noble friends' argument on that question, as were the Government, and that too can be achieved in England

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and Wales by the provisions of the Arbitration Act with the necessary modifications. But in Scotland appeals and challenges on the ground of serious irregularity do not rest on any arbitration Act. There is no Scottish equivalent of the Arbitration Act. Challenges can be provided for in any arbitration scheme without reference to any statutory power.

I claim no expertise in the law of Scotland, but my advice is that the court with jurisdiction to hear such challenges would be the Court of Session. There would be no power in an arbitration scheme to confer jurisdiction instead on the Employment Appeal Tribunal. Those challenges therefore which in England and Wales are intended to be heard by the Employment Appeal Tribunal could not be so referred in Scotland in the absence of separate provision in the Bill. That is because there can be no power at common law to invoke a jurisdiction which is set out and defined in statute.

Amendment No. 9 seeks to make that specific provision. It will not empower the Government to do anything in Scotland which it could not do in England and Wales by using the Arbitration Act provision, suitably modified. I appreciate that the amendment is moved at a comparatively late stage. There is no secret about the reason. It was when the point raised by my noble friends in relation to the desirability of referring matters of substantive law to the Employment Appeal Tribunal was being considered that the question came to light.

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