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Lord Sainsbury of Turville: I thank the noble Lord for that clarification. We will certainly bear that point in mind when drafting the regulations.

Baroness Miller of Hendon: I thank the Minister for his long and detailed answer, which I will read very carefully. It seemed to cover most of my concerns.

I was very grateful to the noble Lord, Lord Wedderburn, for his intervention because there was a lack of clarity on that point. I am not sure that the Minister's response has got us much further; he said, "We will bear that in mind". I am not sure what it means to say, "We will bear that in mind when we come to draft the regulations". It does not mean, "Yes, that will be in the regulations". However, I do not think that one would stand up at this stage and say, "No, it will not be in the regulations". The Minister put the matter in a new way. We will look with some interest to see what happens. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 64:

Page 32, line 16, after "it" insert "who usually makes or who may make, or whose firm or organisation may make, a charge for his services,"

The noble Baroness said: The Minister has said on a number of occasions that the Bill is not intended to prevent people from going to tribunals; the intention is to ensure that there are internal procedures in place so that more issues can be settled within the workplace.

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Of course, we all agree with that. However, there are passages in the Bill that could give the contrary impression—it contains measures that could act as a deterrent—and the prospect of incurring costs is one such item. Powers are given to ETs to make awards. We shall come to that later, but the proposal is unprecedented.

We have been assured by the Minister this afternoon that the intention is not that costs should be levelled against non-profit-making organisations—trade unions, citizens advice bureaux and similar organisations. I welcome that but I cannot actually see the relevant provision in the Bill. Instead, we have the provisions allowing the ET to award costs. The amendment that we are proposing to Clause 22 would give the ET the power to introduce regulations,

"to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative's conduct of the proceedings".

Our proposal is to insert, after the word "it",

"who usually makes or who may make or whose firm or organisation may make a charge for services".

In other words, we want written into the Bill the provision that the requirement will apply in the case of an organisation that charges for services—in other words, paid representatives—but that automatically would obviously not include non-profit-making organisations such as trade unions, citizens advice bureaux and so on. We think that this should somehow or other be written into the Bill. Why do we say that? For the simple reason that if it gets around that costs can be incurred one way or another, that would act as a deterrent to applicants. I and, I am sure, my noble friends have received a briefing from NACAB, which suggested that already its clients are often put off because they believe that costs could be incurred if it pursued the case. Therefore, if they do not have advice, quite often a good case is not pursued. We think that that would not be a very good idea—indeed, it is contrary to what we believe is the Government's intention.

I was very pleased to hear what the Minister said, in relation to the preceding amendment, on the issue of non-profit-making organisations not being charged. He also reasserted that ETs are intended to be accessible, and they might not be quite so accessible if costs were likely to be incurred by non-profit-making organisations. That is very true but we think that that should be spelt out somewhere or other in the Bill. We believe that the amendment would assist with that because it states that costs can be charged to paid representatives, but it uses a definition that means that other organisations would not be included. I beg to move.

Lord Davies of Coity: I rise to give a measure of support to the amendment of my noble friend, Lady Turner. In fact, I do not think I could do better than the Minister's reasonable and sensible attack on Amendment No. 65, presented by the noble Baroness, Lady Miller, concerning whether or not a representative may charge for his services. As my noble friend Lady Turner has already said, the

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Minister clearly stated that we do not want to deter or penalise the activities of trades unions or charitable organisations in making representations. We thoroughly and completely agree with that. That is why the amendment tabled by the noble Baroness, Lady Turner of Camden, should be given serious consideration.

I want to go a little further. Not only is this a question of protecting trades unions and charitable organisations—organisations which do not charge for their services—it may also be a deterrent for organisations which simply take up cases on the basis that they will be paid for doing so. That is not a criticism of solicitors, counsel or barristers, but over the years I have seen a growth of what are sometimes called "industrial relations consultants", or "industrial relations services", which are more than prepared to take cases—sometimes on behalf of an applicant and sometimes on behalf of an employer. Their sole interest is that they will be paid for it. Whether it is a worthy or legitimate case does not much matter; nor does it matter whether they win or lose. They get paid for it.

If the amendment is agreed, it not only protects the litigant in person and those represented by people who do not charge for services; on many occasions it may well cause the organisations which represent both applicants and employers, simply because they will be paid, to think twice. If they lose on a bad case, they may well have to pay the costs that are incurred.

5.15 p.m.

Lord Bassam of Brighton: The amendment seeks to set out on the face of the Bill which types of representatives will be covered by the provisions on wasted costs orders. All the speakers who have contributed to debate on the amendment have raised valuable points and, in real terms, there is not much between us. Our case is that these matters are better dealt with in regulations, and we debated that point earlier this afternoon.

The regulations will provide that wasted costs orders will apply to representatives who are acting for profit, including solicitors, barristers and employment advisers. Wasted costs will not apply to organisations which act on a voluntary or not-for-profit basis, such as trades unions, law centres and citizens advice bureaux. We all agree that those services provide valuable support for applicants and that they should not in any way be discouraged from doing what is an important job.

The other important point here is that there is greater flexibility in the regulations. Our regulations will be able to go further than the amendment because the amendment seeks to limit the power to make rules on wasted costs to representatives who make a charge for their services. That could capture trades unions or other organisations which charge indirectly for their services through membership fees.

The regulations will make a distinction between representatives on the basis of whether they are acting for profit or whether they are paid. As Members of the

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Committee will remember, this was the basis of the consultation in Routes to Resolution and the basis on which we gave a commitment to take forward this provision in the Government's response.

The proper place for the definition of who is covered by wasted costs orders is not on the face of the Bill. Detailed consultation will be the key to getting this matter right. We also need to bear in mind that funding arrangements change and develop over time. Therefore, some flexibility will be required to keep pace with the changes in order to ensure that the wasted costs rules remain true to our intentions. We must also ensure that we do not need to return for additional legislation but instead can deal with the matter by way of regulation.

Amendment No. 66 relates to another amendment which seeks to define in the Bill the types of representative who will be subject to wasted costs orders. Amendment No. 68 similarly arises from the two amendments which precede it.

Amendment No. 79, which relates to Clause 23, makes the same provisions for wasted costs in the employment appeal tribunals. It is our intention that, where possible, the EAT regulations will reflect those in the employment tribunals.

We are not aware of any reasons why the wasted costs provisions in the EAT should be any different from those in the employment tribunals, including in respect of the types of representative who may attract a wasted costs order. Our intention is that they will operate in the same way. There will be a full opportunity to examine this issue further in the consultation on the regulations which, as I am sure the Committee would expect, will be extensive. All I can say about Amendment No. 80 is that it seems to us to be consequential on Amendment No. 79. I hope that explanation, and those which the noble Lord, Lord Sainsbury of Turville, gave on earlier amendments, reassure Members of the Committee who are concerned about this issue. I hope that the amendment will be withdrawn.

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