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Lord McCarthy: No, I did not say that!
Baroness Miller of Hendon: No. I am saying that! The noble Lord, Lord Wedderburn, said that he assumed that the officials had perhaps brought it up again and thought it was a good idea. The rest is my interpretation. So what happens thereafter is that a consultation document arrives. Three months is given for it. The Government must have known in advance that if there were objections from the TUC they would probably drop. Members of the Committee opposite have said that these things are often decided—and I would not have known it—way before the consultation document. They know what is going to go in. It seems rather a farce, therefore, even to have the consultation document.
I would be grateful to hear from the Minister his exact views on the whole matter—when it was decided to do it and why it was decided to cut short a three-month consultation after five weeks.
Baroness O'Cathain: Just on a point about consultation documents and whether or not they have any legal force at all: I have been involved with consultation documents for many years and if the plug had been pulled on a consultation document before I had submitted my remarks, I would have been very angry indeed. As a matter of interest, do consultation documents have any validity or are they just bits of fluff? Can they actually say that they are going to allow three months to consult then after 10 days say that the consultation is over? It brings us all into disrepute.
Lord McCarthy: The noble Baroness knows better than anyone else in this House that the CBI got its bit in and it is reflected in the Bill.
Lord McIntosh of Haringey: I do not know whether I have any role in this? I thought the debate was going rather well. There are two issues to be addressed; first, the history and, secondly, the substance. The history is relatively straightforward and the noble Baroness, Lady Miller, is right about the timing. Consultation is not a legal document. There is nothing which says that you cannot bring consultation to an end early, if you wish, or extend it, although in fact we did not do either.
In fact, it became clear very early on—and Ministers saw the early responses—that there was a very substantial response to this consultation and substantial opposition to the proposal to introduce a charging regime. Over 70 per cent of those who commented, including some employers, opposed it. That included organisations with most experience of dealing with applicants, which included for example the National Association of Citizens Advice Bureaux, which said:
- "The Citizens Advice Bureaux Service strongly opposes this proposal. Even with the sort of discretionary exemptions proposed in Routes to Resolution, the proposed fees would inevitably act to deter would-be applicants with well-founded cases".
I turn now to the substance of the amendment. The deposit system which is proposed is simply charging by another name. If a substantial number of applicants would have difficulty in paying an upfront charge, they would have difficulty in paying a deposit. The noble Baroness, Lady Miller, talked about discouraging vexatious applicants, but throughout the Bill there are various procedures for discouraging vexatious applicants. The fundamental point was rightly raised by the noble Lord, Lord McCarthy, who said they are insignificant in number—the figure was 247 out of 130,000, which includes the people who do not turn up. I say to the noble Baroness, Lady Gardner, that this really is not a serious problem in numerical terms.
The noble Baroness, Lady Miller, has built into the amendment a provision for exempting applicants who are in receipt of specified benefits or suffering exceptional hardship. If we take the two most common complaints—unfair dismissal and unlawful deduction of wages complaints—it is clear that because of the nature of employment tribunals many applicants will be covered by these exemptions. It is not just wrong in the sense that it would deter people from going to tribunals, but it is also misconceived in the effect that the noble Baroness, Lady Miller, would wish it to have. It would place an administrative burden on the tribunal system which would mean that they would have to consider the merits of each case and the circumstances of each applicant.
My noble friend Lord Davies was quite right in reminding us that there is already a system for weeding out cases which have no prospect of success, through the pre-hearing review. A tribunal may request a deposit as a condition of proceeding with the case. Those are satisfactory answers on the substance.
6.15 p.m.
Baroness Miller of Hendon: Before the Minister sits down, he has given a very clear answer as to why the Government changed their mind, but he has not answered what I asked at the beginning: what was the
Government's thinking in bringing this forward? If it is so unnecessary, or if there are so few vexatious claims, or if there are other ways of dealing with them, what was the Government's motivation to put down such a clause in the consultation paper?
Lord McIntosh of Haringey: If you consult people, you consult them on a range of options, even if you have a very clear idea about what some of them might mean—otherwise consultation is meaningless. You do not just put forward the ideas that are strongly in your mind, but you put forward a range of ideas reflecting the range of views out there in the world. This had been proposed and indeed it was one of the things that the noble Lord, Lord Young, proposed in 1986. It is proper that it should be within the spectrum of consultation.
Baroness Miller of Hendon: I will accept what the Minister says but I thought that the words, so strongly put in the consultation document suggesting that this was a way forward, were good enough for me to quote in my amendment. I did not think I could word it better. In the consultation paper, the Government showed an enormous enthusiasm for something that was just one side of the battle—it could be yes or it could be no. I find it quite an extraordinary answer.
Lord McIntosh of Haringey: I do not know how I am supposed to respond to that. Is one supposed to put forward the proposals that are towards the edge of the spectrum, in a deliberately discouraging way? It does not make any sense.
Baroness Miller of Hendon: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 72:
- Page 32, line 29, at end insert—
The noble Lord said: This amendment has been touched upon in substance by what has passed already today. It concerns wasted costs orders and it concerns a matter of natural justice.
Wasted costs orders, we are told, will be approached on the same basis as the rules in the High Court. Therefore, one turns to Rule 48.7 of the Rules of the Supreme Court, made under the Supreme Court Act 1981, which was added to by the Courts and Legal Services Act 1990.
Under that Act, there is a very clear rule, which is printed as Rule 48.7(2) of the White Book, or Rules of the Supreme Court. I quote as follows:
With regard to that particular point, it is our submission that regulations are not enough, if for no other reason than regulations will no doubt be able to be changed by a future Secretary of State. We do not believe that this rule should be open to change. We are discussing cases in which a representative of a party has wasted costs awarded against him. We have touched on the grounds for such an award. They are rather more limited than the Minister seemed to appreciate, but they concern a person being negligent or acting improperly, vexatiously or unreasonably. I include, in particular, legal representatives, and that has not escaped the notice of the Law Society and other bodies concerned with the profession.
Such accusations are serious and, as a matter of natural justice, a representative of a party against whom wasted costs are threatened must have the opportunity to reply. He should not simply have an opportunity to reply based on regulations which can then take that opportunity away, but an opportunity to reply based on legislation. If a government then want to take away that fair opportunity to be heard, they must explain to Parliament the reason for doing so.
I know that we have touched on the problem of regulations in previous debates on the Bill, but this is a specific point. I hesitate—I shall explain why—to raise too strongly Article 6 of the European Convention on Human Rights, which is now a precept that we must follow by reason of the Human Rights Act. The obvious point is that people against whom a case is made should pay for wasted costs because they have acted improperly in their professional work. They should be afforded a full and fair hearing on that matter. Obeying the injunction upon counsel and anybody else to cite cases which may seem to be against that submission, I refer to the case that is mentioned in the White Book, the Rules of the Supreme Court, which is cited as The Queen v. The United Kingdom, case 10615 of 1983. I quote what the White Book summarises as the effect of that European judgment:
That decision in 1983, and a reference to it now, however, includes the fact that our procedure resolutely states on the basis of statute that there will be an opportunity for the legal representative to answer the charge that he has acted so improperly that a wasted costs order must be made. In my submission, it would be profoundly resented by all of those who act
It is totally inadequate to say that such a right—based, I submit, on Article 6 of the convention—is merely to be dealt with in regulations that can be here today and gone tomorrow. I trust that the Ministers will accept that this at least is something that they should take away and look at with approval. They should accept that our statute law should enshrine such basic principles so that we can all have confidence in the way that the law will be administered. I beg to move.
"( ) The regulations shall provide that before a tribunal makes an order within subsection (1A)(a) or (b), it shall afford the representative a reasonable opportunity to give reasons why it should not make the order."
"The court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make such an order".
That is an order to disallow the costs or expenses of the representative. In other words, it is precisely the territory which is covered by Clause 22(1A)(a) or (b). We have a precise parallel with the area, and a precise parallel as to what the rule should be. Indeed, the Explanatory Notes to the Bill say that it is intended that regulations will include safeguards to allow the representative the opportunity to put his or her case on any proposed award of wasted costs. I know that we shall be told that that will be made clear in the regulations.
"The making of a wasted costs order does not breach the European Convention on Human Rights nor does it raise an issue under the European Convention of Human Rights Article VI paragraph 1."
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