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Lord McCarthy: That is rather stony-faced, is it not? I do not argue with people about what appears in Hansard; I go and look it up. But I do not believe that that is all that the Minister said. He said that he would listen to those things and study the amendments that we put down which he thought were designed to restrict access. If we put down amendments which

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were not designed to prevent the restriction of access, if we put down amendments, say, to facilitate consultation, he would block his ears. I do not believe so.

Lord Sainsbury of Turville: No—

Lord McCarthy: That is what the Minister has just said. Let Hansard speak for us. I believe the Minister gave an offer to listen to virtually everything we said. He did not give an undertaking to do anything about it, but he gave an undertaking to listen to everything we said, and he did not qualify it in any way.

On reading the amendments, Members of the Committee probably know it is one of a series of attempts to broaden the scope of consultation; and to broaden the scope of consultation not by taking away the assurances of the Government—we take them away—but also by having something on the face of the Bill. It is an attempt also to try to put something slightly less into regulations, and something slightly more into the statute itself.

I hear what the Minister says. I hear that the Minister is not moving. I know that at this point we have to withdraw the amendment, and that I do.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon moved Amendment No. 71:

Page 32, line 29, at end insert—

"(1C) Employment tribunal procedure regulations shall (except as provided in subsection (1D)) require an applicant on the lodgement of a claim to pay a deposit to the tribunal of such sum as the Secretary of State may from time to time by order prescribe (not being less than £100).
(1D) The regulations may provide for exemptions for payment in whole or in part by persons in receipt of such benefits as the Secretary of State may from time to time prescribe, and the Secretary of State may revocably delegate a discretionary power to the Secretary of Employment Tribunals to exempt individual applicants from the payment of all or any part of the deposit on compassionate grounds or on the grounds of exceptional hardship.
(1E) Such deposit shall be refundable or forfeited in whole or in part at the discretion of the tribunal after considering the reasonableness of the applicant's case and the manner of its conduct.
(1F) The tribunal may order the refund of all or any portion of the deposit notwithstanding that the claim is dismissed by them in whole or in part.
(1G) Any part of a deposit forfeited under this clause shall be paid into the Consolidated Fund."

The noble Baroness said: In moving Amendment No. 71, I would like to say at the outset that I understand from several things that the noble Lord, Lord Wedderburn of Charlton, said yesterday, and indeed in passing today, that he will not like this amendment at all. The only thing that I would say before I launch into an explanation of my amendment is that I very much hope that the noble Lord, Lord Wedderburn of Charlton, and indeed perhaps the noble Lord, Lord McCarthy, and anyone else who feels similarly minded, that I am moving this

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amendment from my perspective in good faith. I will accept whatever the noble Lords opposite say and feel in exactly the same way.

I appreciate that there are certain parts of the Bill that we both see differently, and I understand the experience which the noble Lords opposite bring. I have, I suppose, from an entirely different point of view. Having said that, it is a probing amendment in so far as I am very interested in hearing what the Minister has to say about their views and feelings on this subject.

In July 2001, the Government published a consultation paper in which they said:

"The Government believes it is reasonable for applicants to pay some of the costs of bringing a case . . . The civil courts impose charges at various stages through the system. There are equally various stages throughout the life of an employment tribunal case where charges could be levied . . . A successful applicant would recover the charge as an addition to the award".

The consultation paper went on to propose an alternative; either a "hearing deposit" or,

"whether to charge for applications to the Employment Appeals Tribunal".

I am sorry to burden Members of the Committee with a further quotation from that same discussion paper, but it makes my case far better than I could. The Government stated:

"Charging would inevitably impact on the behaviour of the parties. It would encourage potential users to reflect seriously whether to take their case to tribunal or whether to seek to resolve the dispute in the workplace".

I believe that it would. Apart from concentrating the mind of the parties it will in addition to the compulsory conciliation procedure being introduced by this Bill inhibit the launching of frivolous and vexatious claims.

I entirely accept that there is no purpose whatever in the Government publishing discussion papers merely in the hope of having their preconceived views endorsed. Equally, it would make a mockery of the consultation process if the Government were to ignore the representations they have received as a result of their consultation paper.

In this case, the Government's response to the consultation took the view, that:

"there was a substantial opposition to the proposal to introduce a charging regime".

That was the view of two-thirds of those who had commented on the consultation paper.

I do not know who was consulted but the validity of this piece of research is totally flawed by the fact that although the closing date for response to the consultation was 8th October, the Government, in the person of the Secretary of State, announced early in September that they were withdrawing the proposals to charge. That was done before the end of the consultation.

The significance of the date of the Government's premature shutting off of the consultation is that—and I know that Members of the Committee opposite

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will know that this is a fact—it occurred at the time of the Trades Unions Council's annual meeting. As the Guardian so rightly stated on 5th September:

"Tony Blair has sanctioned his first political retreat since the election by bowing to union opposition to impose charges on applicants to Employment Tribunals . . . the issue was threatening to engulf Mr Blair and Ms Hewitt who are due to speak to the TUC conference in Brighton next week".

I shall look forward to the Minister's explanation of the real reason why the Government dropped the charging proposal. It will be very interesting to know. In any case, perhaps I may say that my amendment totally bypasses the question of a charging regime. All it calls for is a one-off fee for launching an application to the tribunal, identical to what the Government stated in the consultation paper they were considering in relation to the appeals tribunal.

In anticipation of the inevitable response that it might inhibit potential poor claimants, perhaps I may point out that any litigant before the civil court has to pay a filing fee on launching a claim.

Furthermore, my amendment has been drafted carefully—I will not say elegantly, having learnt a lesson yesterday from the noble Lord, Lord Wedderburn—to include a number of essential safeguards for any claimant.

First, the Secretary of State will fix the amount of a deposit which, in the words of the consultation paper, is not excessive. I had supposed initially that it would be a fairly nominal £100. I accept that, whether that is a nominal sum is certainly dependent on the potential applicant's means. Let us not forget that there have been well-publicised tribunal cases with disgruntled employees who were earning five and six figures salaries, complaining about constructive dismissal, sexual discrimination and so on.

Secondly, the amendment provides for the Secretary of State to grant exception to benefit recipients plus—and this is an important point—for individuals to be granted exemption on a case-by-case basis on compassionate or hardship grounds. Thus, anyone who would be inhibited by the fee would certainly not have to pay it.

Thirdly, the deposit is refundable at the tribunal's discretion, even if the applicant loses.

The object of this amendment is, frankly, just to discourage a vexatious or vindictive claimant with no real case. It is intended to discourage a claimant who realises that he or she does not have a case, but thinks that the employer might think it worth doing something to stop the trouble. In the words of the Government's own consultation paper, it would,

"encourage potential users to consider whether to take their case to a tribunal or whether to seek to resolve the complaint within the workplace.

I started by saying that this was a probing amendment, in the sense that I would very much like to have the Government's thinking on this. In the amendment I have tried—and I hope I have succeeded in the drafting—to ensure that it should not be a cause

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of inhibiting someone who ought to be able to go to a tribunal, but who does not have the means for this nominal fee that I have spoken of. I beg to move.

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