| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Miller of Hendon: I thank the noble Baroness for clarifying that. I wanted to make sure that it appeared in Hansard that we got through those nine minutes quite well.
I do not know whether the Minister made a mistake or whether the problem arose as a result of the acoustics in this Room, which I thought were quite good, but I thought that he said that the legislation was too prescriptive, but he probably meant to say that the amendments were too prescriptive. I assume that that was a mistake. It may be inappropriate for me, sitting
on the opposition side, to alert the Minister to that, but I have not said anything for a while and I thought that I would say something helpful.We are at one with the noble Lord, Lord Wedderburn, on a point that he made. I do not think there will be many opportunities during the course of the Bill at which we are at one. The noble Lord does not really agree with the position that we are coming from, and that is fair enough. This is a difficult Bill that involves complex issues. We hear all the time about the regulations. The noble Lord mentioned a pig in the poke or something of that ilk. We should not do this kind of thing.
It is an enormous pity that we spend time looking at the complex matters in the Bill but, at the end of the day, we do not know what will happen. The Bill will probably have been agreed to before we have even had sight of the regulations, which should come in due course. That is an enormous pity. I intervene at this point to make that clear in Hansard.
Baroness Turner of Camden: I thank my noble friends who have supported the amendments. To some extent, I agree with the noble Baroness, Lady Miller—this is a complex Bill, and it is a great pity that we do not have an opportunity to discuss the Government's intentions. At the moment, we simply do not know how it will operate in practice, and it is how it will operate in practice that matters to the individuals concerned, many of whom are vulnerable individuals. I have always believed that it is the job of politicians, in so far as we are able, to try to protect the rights of vulnerable people. People who are unemployed and those who are seeking to get rights at an ET are in that category.
My main point was that some aspects of the Bill may be regarded as deterrents. One deterrent involves the issue of costs. That point has been made to me strongly by my union and other unions and by NACAB, which believes that, if it is believed that costs can be incurred by people who are going to tribunals, that can be a major deterrent. I welcome the Government's intention that non-profit-making organisations, which include trade unions, NACAB, citizens advice bureaux and various self-help organisations, will not be charged in any way and will not incur costs for attempting to help people before tribunals. However, I believe that there is a strong case for having something to that effect on the face of the Bill, and to have an indication that paid representatives will probably face costs in a way that unpaid ones will not. That is what the amendment was about. I am sorry that this has not attracted the support from the Government that I hoped it would attract.
We shall have to look carefully at Hansard before Report stage. If the amendment's wording did not attract much support from the Government, perhaps we can think of something else. We shall certainly wish to return to this matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 to 69 not moved.]
Lord McCarthy moved Amendment No. 70:
- Page 32, line 25, after "may" insert "after consultation with the President of the Employment Tribunals (England and Wales) and the President of Employment Tribunals (Scotland),"
The noble Lord said: Someone said that we were at one a little while ago. We should also be at one on this amendment. The noble Lord, Lord Bassam, said that the Government are keen on public consultation. That is the answer to all these regulations—they will be consulted on, I suggest, in a variety of ways. Therefore, our amendments contain a variety of means of consultation because we take the view that if one is going to get consultation these days, one must be precise about who will be consulted and when they will be consulted.
Clause 22 is a very important clause and we have spent a great deal of time on it. It will add new costs, expenses and imposts, and it will do so according to complicated criteria rooted in notions such as abuse, vexatiousness, negligence and so on, all of which are buried away in legal documents. As the noble Lord, Lord Wedderburn, said, they are interpreted by cases. All of that will be put together in regulations.
We say that, before these regulations are presented to Parliament in a form in which Parliament can simply vote in favour or against them but not amend them in any way, there should be consultation with the President of employment tribunals of England and Wales and the president of the employment tribunal of Scotland. One of those gentlemen has expressed firm beliefs, convictions and criticisms of this clause and other clauses but another has not. Those gentlemen preside over the tribunal system and they have enormous experience of the working of the tribunal system. When such significant changes are being presented, surely we should be able to accept an amendment of this kind even if the Bill is cast in rough stone. I beg to move.
Lord Davies of Coity: I shall have to be persuaded to accept the amendment moved by my noble friend Lord McCarthy. He may be able to answer the concern I am going to express.
I understand where he is coming from with regard to the possibility of consultation and introducing that consultation with the president of tribunals. However, if I read Clause 22(1)(1A)(c) correctly, it says:
- "Employment tribunal procedure regulations may include provision for authorising an employment tribunal . . . (c) to order a representative of a party to proceedings before it to meet all or part of any allowances payable by the Secretary of State under section 5(2)(c) or (3) by reason of the representative's conduct of the proceedings."
The emphasis here, as I understand it, is conduct of a representative at an employment tribunal. It seems to me that only the tribunal can make an assessment of that representative's conduct and will have to take a decision on that basis. Taking consultation elsewhere
seems somewhat remote in as much as somebody who was not there did not witness the conduct and was not able to assess the conduct to help in making that decision.If I have misunderstood the point, that is fine, but the amendment says quite clearly add at the end of 25 "after consultation".
Lord McCarthy: I am afraid the noble Lord, Lord Davies of Coity, has misunderstood me. We are talking about consultation on the regulations. We are not saying that Judge Prophet should be there in the tribunal, and say "I don't like that very much". After all, dozens of tribunals are conducted every day. We are saying that when the draft regulations put Clause 22 into effect they should be sent to the presidents of the tribunals for their comments.
Lord Wedderburn of Charlton: My noble friend Lord McCarthy is right. My noble friend Lord Davies of Coity said that we might ponder on it, but he directed the point to line 24 and we are on line 25.
There is a particular point which I hope to put as delicately as possible about consultation with the presidents of the tribunals in England and Wales and in Scotland. My honourable friend in another place, Mr Johnson, distributed to a large number of your Lordships a copy of a letter which he wrote to the president in England and Wales in response to some views which the president had expressed on the Bill. He said that the president had turned down an offer of discussion with him at particular times, and chose not to respond to the public consultation.
I have it on the authority of the president for England and Wales, who has shown me his reply to the Minister, to say that he fully partook of consultations and that he did not see the Minister, Mr Johnson, but he had a long session at his request instead with the Secretary of State herself.
Perhaps that is enough on an unfortunate passage which the president assures me he brought to an end and wishes to hear no more of. However, the Minister will surely understand that those in charge of the judiciary of the tribunals do not feel particularly comfortable about the attitude of ministers in the light of that history and indeed, other matters. Therefore, it is of the greatest importance that confidence in the relationship between Ministers and the presidents of the tribunals—and also, I suspect, the appeal tribunal—should be restored and increased.
Opposition to this amendment will be understood to be a quite extraordinary concept. It will signify that there should not be consultation with the presidents in England, Wales and Scotland. In the past, there has been consultation, and the presidents of both jurisdictions have done their best to maintain consultation. Moreover, since a doubt has been raised about who should be consulting whom, on this occasion it would do no harm at all for the Government to put aside their stonemasons' implements, put aside the graven image that this Bill is rapidly becoming, and at least say that they will take away the amendment and consider it.
5.45 p.m.
Lord McIntosh of Haringey: I want to say two things about the context of the amendment before going on to the detail.
First, as I said when we began debate on Clause 22, subsection (1B), to which the amendment refers, is unchanged from previous legislation. There is nothing new in it whatever. Secondly, although this has not been referred to at all thus far in the discussion, subsection (1B) is not about awarding costs; it is about taxing costs—that is, the amount of costs. There are established rules for the taxing of costs and subsection (1B) repeats the current provision, which allows the rules to provide for taxing or otherwise settling of costs or expenses.
The rules provide for three ways in which the costs may be assessed. First, a tribunal may refer costs awards to the county courts for a detailed assessment. In Scotland they may be taxed by reference to a part of the sheriff court table of fees. Secondly, it may order parties to agree a settlement on the amount of costs which are payable. Thirdly, it may itself decide the amount up to a limit of £10,000. Thus, there are well established procedures for the taxing of costs and we do not propose to make any change in the rules. We have made no change to the primary legislation and we do not propose to make any change to the secondary legislation.
However, we intend to consult on changes to the regulations which arise from the Bill with both the tribunal judiciary and tribunal users. We have worked closely with the tribunal judiciary on previous changes affecting the tribunal rules and we shall do so again. If we are being asked for an assurance that we shall consult the presidents on the regulations arising from Clause 22, I can certainly give that assurance. The amendment would achieve no more than what happens at present and I do not believe it to be necessary.
I do not want to rise to the stonemason argument. I said at Second Reading that we would listen carefully to any argument that the Bill introduces barriers to access to the tribunals. This provision does not erect any barriers to access to the tribunals; it does not in any way devalue the work of the tribunals; and it does not in any way achieve any supposed objective in reducing the number of cases going before the tribunals. The issue before us is simply whether the details of consultation should be on the face of the Bill or in regulations. As a matter of simple practicality, we shall stick to our last and stick to the principle that there will be a distinction between primary and secondary legislation. On that point, we have been supported by the Delegated Powers and Regulatory Reform Committee. On that issue, we shall not move.
Next Section
Back to Table of Contents
Lords Hansard Home Page