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Lord Wedderburn of Charlton: Before my noble friend departs from the matter, I am sure he will understand that what is being done here, as in so many places, is that we are being asked to pass a pig in a poke. We are asked to pass the Bill on the basis that we do not quite know what it means but we are told it will mean something different from how it reads because there are going to be regulations. The Government cannot accept the amendment because, as I understand it, that might mean that a trade union would be included in the measure if it made a profit. The services for which members pay, it is said, amount to payment for representation in the tribunal. Members' subscriptions pay for a vast number of services from the union; they are not specifically for representation. One would have thought that the union was not to be included in the words moved by my noble friend, of a body which,
- "usually makes or who may make, or whose firm or organisation may make, a charge for his services."
Could we then have a formulation now so that we can understand what we are going to debate on Report? I refer to the matter of wasted costs and the extension of wasted costs, not just to the tribunal but also to the appeal tribunal, where I venture to suggest it might cause a certain amount of alarm amongst some members. This matter will not go away and the Law Society has raised other points, to which the Government must know the answer. They will not put it in the Bill because, as we are now quite clear, this Bill is couched in stone. There is not much point in these Committee proceedings, though we will continue with them. Nobody is going to consider an amendment because nothing in the Bill can be changed.
The Law Society has raised another matter, to which my noble friend must have the answer. To summarise what the Law Society has said in its brief: there is a problem with contingency fees. If the case is lost, the Law Society's view is the representative has not charged for his or her services and therefore has not made a profit. The Law Society suggests that instead of prescriptive regulations that could be circumvented, tribunals should have a broad discretion in this matter. From what my noble friend said, the Government have presumably rejected that view. If the tribunal is not to have a discretion they must know what they are going to do about contingency fees, so could he tell us?
Lord Bassam of Brighton: I understand on that last point that the contingency fees are included in the wasted costs order.
I want to deal with one or two other points made by the noble Lord. We are in some danger here of trying to be over prescriptive in the legislation. These are matters which have quite properly been dealt with in secondary legislation for many years. Noble Lords who are arguing the point probably know that better than I, because they have been advising on that legislation for many years. The other important thing is that we need to ensure that we get the detail of this right, which is why we want to consult further, particularly with the judiciary as well as with the Law Society and other organisations which work closely with tribunal users. We want that full public consultation.
Perhaps I may make a further point. The amendment as it currently stands covers organisations which charge for their services. This could include trades unions which charge membership fees. That is not our intention and it is not what we seek to do. We want to exclude trades unions from wasted costs orders. We argue that setting out the detail in the regulations would be a better way of dealing with this matter, rather than on the face of the Bill in primary legislation, where matters tend to be fixed in stone.
Lord Wedderburn of Charlton: So that there should be no misunderstanding about this, my noble friend is saying that he will not take away the amendment and
find better wording—he objects to the wording—and consider an amendment of the Bill. Is he resolutely and absolutely saying that the Bill cannot be amended?
Lord Bassam of Brighton: I shall not do that. I have made clear, as my noble friend Lord Sainsbury made clear earlier, that we want to have very detailed consultation on this issue so that we get the detail right. We do not want to make the kind of mistakes that can often take time to unravel when you have to put them back into primary legislation.
Lord Davies of Coity: I want to clear up a little confusion regarding a comment made by the Minister. On this question of charges, it is generally understood that legal representation, or industrial relations representation by consultants, incurs a charge. Whether it is an hourly charge, a daily charge, or a charge for taking the case, it is a charge. I am not quite sure how it will be possible, if this amendment is accepted, to embrace trades union representation within it, because no charge is made. It is true that trades unions have money and that they may engage barristers but the fact is that trades union contributions are a collective exercise. The actual litigant, the applicant, the trades union member who receives the representation, is not charged for anything. I am therefore not quite sure how, if this amendment is accepted, it could possibly embrace a trades union.
Lord Bassam of Brighton: That may well be the case, but the noble Lord makes the point for us. If we try to set this out on the face of the Bill, the danger is that we will not get it as we should. That is why we require the opportunity to have the detail set out in regulations, so that in the circumstances that the noble Lord describes, trades unions are not inveigled into this on the question of fees and charges.
Lord Gladwin of Clee: I have a feeling that, as happens down the other end of the corridor on a number of occasions, and quite understandably, we will be told that the amendments that we are pursuing, and the spirit behind them, would be better covered in regulations. I am reminded by my noble friend beside me that that is not a new phenomenon. What concerns me is that I am not quite sure what the process will be. Are we being told that with this amendment, for example, and some of the others that have my name attached to them, there will be consultation between the Government and the parties? Or will there be consultation between the Government and the parties and public disclosure? I am not quite sure how humble Peers who are interested in this Bill will see the proposals of the Government on these issues. I am quite happy for the parties to be consulted, but I want to be consulted too. I want to know what is happening. Could my noble friend give some clarification on this?
Lord Bassam of Brighton: My understanding is that when Routes to Resolution was circulated, that constituted full public consultation. It is envisaged that a similar exercise will no doubt be undertaken when the draft details of the regulations are put
forward. There is absolutely no problem with the noble Lord being consulted as well. In a sense, these amendments will inform some of the thinking behind the draft regulations. I am sure that the points that have valuably been raised in this debate will be taken on board by those who are responsible for drafting.
Lord Gladwin of Clee: It may be called "Routes to Resolution: Part 2" or "Son of Routes to Resolution".
Lord Bassam of Brighton: There will be full public consultation. I cannot be clearer than that.
Lord McCarthy: One cannot say, "Full public consultation" because the demon takes so many forms. Routes to Resolution was not published in the normal way for a White Paper. I would not say it was hugger-mugger but it was semi-hugger-mugger. The response to Routes to Resolution leaked out round the corner. One does not publish regulations in the Printed Paper Office so that we can go and get them. That is not the way that things happen. Every time that this is done, it is done in a slightly different and slightly more restricted way. Unless there is a list of people who are going to get the paper, one will simply be told, "You might find it if you hunt about on the Internet".
Lord Bassam of Brighton: I am not sure that this argument can be won. I suspect that we are getting at the root of the noble Lord's suspicions about the process. I can only put on the record our continued commitment to full public consultation, and I am sure that all those organisations that were part of the consultation process for Routes to Resolution will have ample opportunity to respond to the draft regulations when they are published. No doubt the noble Lord will contribute to that consultation process and we will benefit from it.
5.30 p.m.
Baroness Miller of Hendon: At this late stage—after nine minutes—I would like to mention a small technical point. The noble Baroness, Lady Turner, spoke to her Amendment No. 64 some time ago. I am well aware that Amendment No. 64 and Amendment No. 79 cover the same points, and that Amendments Nos. 66, 68 and 80 equally cover other points. From a purely technical point of view, I did not hear her mention any of the other amendments.
Baroness Turner of Camden: I spoke to them all.
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