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Lord McCarthy: I want to say three things to the noble Baroness. The first is on her point about it all being done at the TUC. Maybe it was. There are some people who are consulted by the Government all the time. The TUC is consulted most of the time. The CBI is never out of the place. There are some people who just get consulted—they consult the doctors when they are putting in medical laws. There are some people whose interests are so central and who are so influential and important that they are consulted all the time. They see drafts of legislation long before simple, under-handed, "small" people—people like you and I—ever see them. That is no doubt what happened in this case, but you cannot get all worked up about it because, of course, the Conservative government did it when they were in power. All governments consult critical groups.
6 p.m.
Baroness Miller of Hendon: I have no objection at all to any consultation with anybody. The point I was making was that the consultation was meant to end on 8th October. Surprisingly, it was all of a sudden cut short and announced in September, just at the time of the TUC conference, that they were abandoning that proposal. That was the point I was making, purely on the consultation.
Lord McCarthy: I am trying to explain why it happened. The consultation on Routes to Resolution concerns the whole of the Bill. It mentions everything in the Bill. It is for anybody who wants it. I was foolish enough to write in and I got there before 8th October.
The noble Baroness is perfectly right. It was no good writing anything about the matters in her amendment because that had been decided, but there were many other things still to be decided, and other people could consult on that if they wished. It is no good getting cross because all governments do this, because some things are fixed in advance with interested parties. That is life. That is the first point.
The second point is that this proposal that is being put forward is not novel. The noble Lord, Lord Young of Graffham, in 1986, as a Conservative Minister, proposed exactly the same thing, and he has told us that he was discouraged, partly because he decided it was unfair. He said that poor people could not afford it and it would discourage the kind of litigant that needed to be encouraged. After all, 80 per cent of litigants do not have a trades union, they have no support; all they have is the CAB, if they can go there. He was persuaded, perhaps by his officials, that the measure would be unfair. When he went into the facts in order to make it work, or to make it less unfair, he might have thought it would be a good idea to provide a means-tested allowance. Figures were produced to show what it would cost to collect the money in question and to show that it was not administratively worthwhile. He therefore decided not to do that. I dare
say that for exactly the same reasons the civil servants dug up the same file and gave it to the relevant Ministers, who read it and said, "Oh yes, I see". So it all went out.
Lord Wedderburn of Charlton: My noble friend appreciates that in the eyes of the noble Baroness the matter is much more sinister because in 1986 the TUC produced powerful arguments to persuade the noble Lord, Lord Young of Graffham, to rescind his proposals.
Lord McCarthy: That is all perfectly true and they were put away in the file.
The third point is that the noble Baroness commented a great deal—and I am forced to say this—on vexatious claims. She invents new amendments to cut back the flow of vexatious claims. The one thing we can say—even SETA, dear old SETA 1998—is that there are virtually no vexatious claims. According to the tribunals, 0.4 per cent of hearings are based on vexatious claims. If the noble Baroness wants to do all this to get rid of this infinitesimal number of vexatious claims, she will have to get a new word.
Baroness Gardner of Parkes: One aspect of this that has not been mentioned—and I would like to know whether the Minister has any statistics on it—is that of people who file a case and fail to turn up. I have very frequently sat there with all the hours that were allotted for a case, and five people appearing to fight the case, only to find the applicant did not come. He thought it was not worth his while or he had another job, or there was some other reason why he did not turn up. I certainly believe that there is a deterrent element in the £100. I do not consider that the amount is very great and most people could borrow it, although there may genuinely be some people who cannot.
Yesterday, when I went to Camelot, they told me that one of the first lottery winners could only get a lift as far as Watford and had to walk from Watford to the Camelot office in order to claim his winnings. So there are people who genuinely cannot afford this sum and perhaps cannot borrow it from anyone else, but I feel that they are covered by the other categories in here. It is a serious matter to waste a tribunal's time. It may have half a day or even a whole day allocated for a case and then finds it cannot proceed with that case and does not have another to replace it in some instances. I would be grateful if the Minister could tell us how regularly that happens.
Lord Davies of Coity: If I may start on that point, in my experience it is not only applicants who have a monopoly on not turning up. Employers on occasions are not represented at tribunals and there is a considerable record of cases being adjudicated on by a tribunal on the basis of one or the other of the parties not turning up. So it is a one-sided decision and sometimes that has been appealed against. Such cases have come before me on occasions, and there is nothing I can do about it, as it is in the discretion of the tribunal to act in accordance with the rules.
This is a heavy-handed amendment, wanting applicants to put down a deposit. It will deter many poor applicants from making a claim in the first place, even though their application may be well and truly just.
It is my belief that there is already provision—and the Minister may wish to confirm this—within the existing rules for employment tribunals whereby in some cases better and further particulars are sought. They are then offered a preliminary hearing and a tribunal might very well say to an applicant, "This case does not appear to be sound and, if you are to progress it, we will take it but you must lodge a deposit". That provision, as I understand it, already exists in the tribunal rules.
Baroness Turner of Camden: I also raise the point with the noble Baroness that she says in the second paragraph of her amendment,
- "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."
Baroness Miller of Hendon: In my speech on the very point that the noble Baroness has raised, I said that it would be up to the tribunal to decide to waive it if they thought that it was necessary to waive it, and they would have to work out their own rules. It is not a question of a means test, as the noble Baroness puts it. I was trying to suggest that, if there are people who could not pay the £100 fee, there might be some way of considering how they may be helped.
I started by saying this is a probing amendment. I am interested to know what the Government feel about the matter and why they dropped it. In another place, they said that of the people with whom they consulted there was a preponderance of those who did not want it and so it was dropped.
I would say to noble Lords opposite that I do not know about matters that are fixed beforehand and whether the consultation was a "fix". They were as surprised as I was that that was the case. However, it seems extraordinary to me that the consultation document was issued in July and there was a final day for that consultation, which was 8th October. So, at most, we are talking about a three-month consultation. However, a few days before on 5th September, by the time of the TUC conference, it was announced that the decision had already been made. There were still over four weeks to go for people to say what their views were but the Government decided to drop it.
I do not know whether that is the normal way of things. Members of the Committee opposite have said that they would be surprised even to comment on it. It seems extraordinary that in a three-month consultation with something like five weeks left to go and people might still be wanting to send in their views
on that particular point—and that was one of the most contentious points—all of a sudden a decision can be made. If that is the case, there is no point at all in having consultations with dates fixed.
This is quite a serious matter because ultimately, I would assume that the Government knew, when they issued the consultation document, that the Trades Union Conference would be on 5th September. I find the whole thing turns out to be something of a sham. Having said that, I was interested to know what the Government were going to offer as their reason for changing it. I heard the noble Lord say that this was something that the noble Lord, Lord Young of Graffham, had raised in 1985 to 1986 and he believed that the officials just dug it out of somewhere and put it in front of the Minister. He said that it was a good idea and they would have a three-month consultation—
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