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Lord Filkin: I am aware that the House is sitting tomorrow, and that many of those present will be taking part in those debates. Therefore, there was an understanding that, when it got to 10 o'clock, that might be a good time to adjourn the House. We are about one minute off. Therefore, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Commonhold and Leasehold Reform Bill [HL]
Returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
- House adjourned at one minute before ten o'clock.
Official Report of the Grand Committee on the
Employment Bill
Thursday, 14th March 2002.
The Committee met at four of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): I would like to remind the Committee of the instructions that were read out yesterday; namely, that there shall be no Divisions in the Grand Committee; Divisions will have to wait until Report stage. If there is a Division in the Chamber, I shall ask the noble Lord who is speaking to desist and carry on after we resume the Committee after a 10 minute break.
Clause 22 [Employment tribunals]:
Baroness Miller of Hendon moved Amendment No. 62:
- Page 32, line 12, at end insert—
The noble Baroness said: Amendment No. 62 has a simple purpose. It relates to an applicant who has had no part of his application granted by the tribunal, and to a respondent where the applicant has been wholly successful. In other words, it is even handed as between applicants and respondents. It applies when an applicant has wholly failed in his case and when a respondent has wholly failed in his defence. In either of those cases, the unsuccessful party is required to demonstrate that he acted on the basis of competent advice, had a case with a reasonable chance of success or a defence with a reasonable chance of success. If the wholly unsuccessful party cannot prove that he or she brought or defended the case in good faith, the tribunal must award costs against them.
This provision will deter applicants with hopeless cases from starting a claim in the expectation of getting something for its nuisance value or inconveniencing an employer. It will also deter the employer who defends a case out of vindictiveness when he has no real defence, or who tries to intimidate the claimant through the use of his greater resources. This provision is far milder in its effect than the situation in the civil court where, except in the most special cases, the costs always follow the event. In other words, in the civil court the loser pays the winner's costs. Under my provision the loser will not pay the winner's costs unless the tribunal is absolutely convinced that the case was not brought in good faith. I beg to move.
Baroness Turner of Camden: I am very surprised that this amendment is before the Committee this afternoon. I have not had the privilege of serving on an ET myself but I had the experience, as a very young trade union official, of representing trade union members. How on earth the tribunal is expected to demonstrate competence, I have no idea. I used to be fairly successful but occasionally cases fall apart at the hearing, perhaps because one has not been properly informed before the case started. It is not an indication of competence or otherwise if you have had one or two cases that you have lost. Frankly, how on earth the tribunal is expected to come to a view about competence, I do not understand. Maybe it would be a good idea if the Government were to appoint my noble friend Lord Wedderburn of Charlton to set an examination in employment law. After all, he knows more about it than anyone else. One could have a pass or a fail for one's knowledge of employment tribunal procedures and law. Otherwise, I really have no idea how one assesses competence, and I do not believe this is a good idea at all.
Lord Wedderburn of Charlton: I would not pass an exam. My noble friend must take this amendment more seriously. It was, after all, moved by the noble Baroness, Lady Miller of Hendon, on behalf of a party that aims to be the government of this country. Presumably the amendment is the result of deep thought on the part of the noble Baroness and her advisers. I always take very seriously her proposals for a central policy on the question of costs.
I remind Members of the Committee of our debate yesterday. There is of course enormous pressure to increase costs, especially costs on applicants, which, as the noble Baroness, Lady Miller of Hendon, made clear, is the primary reason for stopping applicants from bringing these terrible cases, however reasonable the case may be. Of course, the tribunal will award costs against them if the adviser is incompetent in the tribunal's view. Perhaps the noble Baroness would tell us whether that is not the case. The tribunal would have to keep a list of benchmarks of competence. No doubt it would not have to pass an examination on labour law at the London School of Economics, but one wonders whether a third class in a resit would do.
The noble Baroness must have some idea of the competence that she would demand. Would mere qualification as a legal representative or trade union
I flag up at this point the fact that a very important question is involved. How far will the future law of this country cause the tribunal to intervene with regard to arguable cases, which are not manifestly impossible and should not be struck out, and which should make the tribunal try the case in advance to decide whether it has a reasonable prospect of success?
I share my noble friend's astonishment that such an amendment to the Bill was tabled by the Official Opposition.
Baroness Miller of Hendon: The first thing I say to the noble Lord, Lord Wedderburn of Charlton, is that he has not understood what I have said. He suggested that all this was to deal with the applicant to the tribunal and make him deal with costs. I stress again the relevant provision, which is that it relates to an applicant who had no part of his application granted by the tribunal and also to a respondent if the applicant had been wholly successful. In other words, the arrangement is absolutely even-handed between applicant and respondents.
I appreciate that the noble Lord, Lord Wedderburn of Charlton, has a different point of view from my own. However, what he says he says in good faith, and so do I. When I say that the arrangement is even-handed on the two sides, I would like him—please—to accept that; he should not refer to half of what I have said, which I believe is very unfortunate.
Lord McCarthy: The point is that whoever the amendment leans on, who is going to feel responsibility and liability? What we are saying is that such an amendment is much more coercive and much more of a disincentive to a poor little applicant than it is to most respondents.
Baroness Miller of Hendon: I do not accept that. Also, I have to say, and I will say again, that we are talking about a case in which the applicant has had no part of his application granted by the tribunal. The tribunal had already come to a conclusion and has not given way on any part. That means, of course, that in that case the respondent was successful. On the other hand, if the applicant is told that he is absolutely right, the respondent will have been absolutely unsuccessful; that was the point that I was making. I understand that noble Lords may want to interpret that in a different way. All I am saying is that I think that they should take into account what I say, and not what they think I might have said.
Baroness Turner of Camden: Before the noble Baroness sits down, the point that I was making was the difficulty of assessing competence. How on earth does one do that?
"( ) The regulations as to cost and expenses made hereunder shall include provision so as to ensure that—
(a) at the conclusion of a case before an employment tribunal—
(i) an applicant (if the tribunal has granted no part of that person's application) shall be required to demonstrate to the satisfaction of the tribunal that he has received advice from a person whom the tribunal considers to be competent to give such advice to the effect that the applicant's case has a reasonable prospect of success; and
(ii) a respondent (if the tribunal has refused no part of the applicant's application) shall be required to demonstrate to the satisfaction of the tribunal that he has received advice from a person whom the tribunal considers to be competent to give such advice to the effect that no part of the application has any reasonable prospect of success;
(b) if a tribunal is not satisfied that the conditions set out in paragraph (a) (i) and (ii), as the case may be, have been complied with, it shall award costs against the applicant or respondent respectively."
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