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Lord McIntosh of Haringey: As is so often the case in these Committee, there are two separate issues here—although in this case there are probably three separate issues. The first issue is the substance of the amendment itself and the second is the issue of whether the substance should be in primary or secondary legislation. The third issue is that of compliance with the European Convention on Human Rights.
Let me start with the issue of substance. We are wholeheartedly in agreement with the substance of this amendment. It is a valuable safeguard that representatives should not be on the receiving end of a wasted costs order without having an opportunity to put their case to the tribunal. We fully intend to give representatives such a right when we draw up the regulations on wasted costs. I do not think that there is anything between us on that.
I turn to the issue of whether that should be in primary or secondary legislation. There is an analogy with the civil courts, where wasted costs orders are already provided for. Representatives have a right to put forward their arguments about why a wasted costs order should not be made against them.
In the civil courts—this is also our proposal—that right is set out in secondary legislation. We will have regard for the established principles and practice of the civil courts in drawing up the regulations on wasted costs for employment tribunals, where they are appropriate. There is no difficulty about that. As the noble Lord, Lord Wedderburn of Charlton, rightly said, that is already referred to in the Explanatory Notes.
The third issue is about whether the right for representatives to put their case on a wasted costs order is protected by the European Convention on Human Rights. The Joint Committee on Human Rights has expressed its satisfaction with the Bill's compliance, including the provision that this should be an amendment—that is referred to in the Explanatory Notes. It is therefore satisfied that it is sufficient for compliance that the provisions should be in the regulations.
We are not sure whether the right of representation is necessary for compliance with the Human Rights Act. That is arguable either way. However, because we are going to give representatives the right, the question does not arise. In any case, if a question of giving assurances to Parliament is involved, it has for some time now been the practice of this Government, and will continue to be the practice of this Government—indeed, it will continue to be required to be the practice of this Government—to give an assurance on each occasion when secondary legislation comes before Parliament, and an assurance that the provision is in compliance with the European Convention on Human Rights.
6.30 p.m.
Lord Wedderburn of Charlton: I am grateful to my noble friend. However, one very important aspect is not made clear by his careful explanation. The Rules of the Supreme Court in the White Book are not able to be changed merely by some regulation that emanates from a Secretary of State. At least, it is my understanding that this is a matter that the judges would pass on in their counsel. Is the Minister giving us an assurance that when that regulation is made it will provide specially, and specifically, that the assent of presidents of the tribunals or of senior judges of the appeal tribunal and others will be needed if any change—or at least any change that is less favourable to the representative—will in future be made?
If that is not so, it is difficult to perceive how this provision, which would relate merely to a regulation that could be changed, was fully in conformity with the spirit—and, indeed, the letter—of Article 6. I have to admit I have not seen on paper the arguments of the Joint Committee on Human Rights. However, why it should be satisfied with the idea of not putting that in the Bill mystifies me.
Will the regulations have the sacrosanct character of the Rules of the Supreme Court in the White Book? That is my central point. Will they be unalterable except with the agreement of the judicial authorities who administer the tribunals and the appeals tribunal?
Lord McIntosh of Haringey: I am not certain that the White Book is any more sacrosanct than a regulation. If the judiciary can change it, the judiciary can change it. What we are saying is that it will be in regulation, which would have to have the approval of Parliament. In coming before Parliament, it would have to include an assurance that it was in conformity with the European Convention on Human Rights.
The noble Lord was worried about whether there should be consultation with the presidents of the tribunals before any change was made. That is worth thinking about and I will certainly think about it between now and Report.
Lord Wedderburn of Charlton: I am grateful for that chink in the stone, and I appreciate fully what my noble friend said on this matter on behalf of the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees (Lord Tordoff): In calling Amendment No. 73, I have to inform the Committee that, if it were to be agreed, it would pre-empt Amendments Nos. 74, 75 and 76.
Lord Wedderburn of Charlton moved Amendment No. 73:
- Page 32, line 30, leave out subsection (2).
The noble Lord said: Amendment No. 73 is grouped with Amendment No. 74. It may be appropriate if I explain why I wish to address Amendment No. 74 before Amendment No. 73.
Amendment No. 73 would leave out Clause 22(2), which inserts a new section concerning preparation time into the Employment Tribunals Act 1996. I shall explain in a moment why we would prefer to leave it out—we are not alone in thinking that it should be left out. The amendment to that new section proposed in Amendment No. 74 would confine the power to award preparation time costs, as I shall call them, to cases where costs are awardable at present—namely, as the amendment states,
- "where in the opinion of the tribunal that party has in bringing the proceedings, or that party or the party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or in the bringing or conducting of the proceedings the party has been misconceived."
The trouble with new Section 13A proposed for the Employment Tribunals Act 1996 is three-fold. It is confusing, as the Explanatory Notes show; its content is unreasonable; and its effects would be quite unfair. I invite noble Lords to look at new Section 13A on page 32. It states:
- "Employment tribunal procedure regulations may include provision for authorising an employment tribunal to order a party to proceedings before it to make a payment to any other party in respect of the time spent by that other party in preparing his case."
I turn to the term "a payment". The Explanatory Notes begin by calling it "compensation"—that is the heading. But they go on to say that it will be awarded in a case where costs could be avoided. Therefore, Amendment No. 74 takes up that offer—perhaps by now Members of the Committee will be wearied by this—but states that it should be set out on the face of the Bill. This is such an important point that manifestly it should be on the face of the Bill because this is an entirely new jurisdiction. Indeed, the Law Society points out that this is a jurisdiction which goes far beyond the civil law in any other court to award a payment for preparation time—not legal costs, not any other heading of known costs but preparation time. The Law Society points out that the concept goes beyond what applies in the civil courts. When one reads the proceedings in another place, it is sometimes difficult to know what the Government's view is on that. There were suggestions—I put it no higher—that this is just in accordance with ordinary county court or
High Court procedure. That is not the view that the profession takes and is certainly not the view that I would submit to the Committee.The Minister in another place spoke of the need to help an applicant who had no help at all in filling out the form, sitting at the breakfast table. We will hear more about the forms later because they will get more complicated. I have little sympathy with that but that is not the problem, as the Law Society has pointed out. The Law Society and others have said that preparation time awards will of course impact upon applicants proportionately far more because respondents will say that they are entitled to a payment for their preparation time. That is what the Bill says.
The Explanatory Notes go on to say that the respondent will not have to prove how much preparation time was spent on the case. I said at Second Reading that there is a certain tremor of trepidation about how much will be charged for the noble Lord, Lord Simpson, at Marconi to deal with a case coming across his desk in 10 minutes. There is a maximum of £10,000 but a number of applicants will feel threatened by the risk of preparation time payments—not costs.
Lord McIntosh of Haringey: The noble Lord, Lord Simpson, is an applicant, not an employer!
Lord Wedderburn of Charlton: My noble friend knows all about that. I am an amateur in such matters. I noticed in today's newspapers mention of the noble Lord, Lord Browne; perhaps that would be a better example. The point is that I, as an applicant going to a tribunal, will be faced with a Bill that says regulations are going to be made whereby the other party can demand the payment for the time he spent in preparing their case. As the Law Society says,
- "Although this provision is couched in language that applies equally to both parties, it is likely to impact disproportionately on applicants. In almost every case, an applicant will be exposed to the risk of a greater costs award than the respondent".
The case for preparation time is such that the Law Society proposed that Clause 22(2) should be deleted. I therefore advance it on behalf of the arguments advanced by the Law Society. It is no good telling me
that this is some curious academic or political concept that has been dreamed up in the middle of the night. The author of this notion must have had a nightmare to have put forward such an extraordinary idea.Why is it disguised as a mere payment, and a payment which is not even going to be measured by the loss which has been suffered, because the Explanatory Notes make it clear that the regulations will say not that there should be any assessment of loss? On the contrary, they state:
- "It is not intended that the parties should have to prove how much time they have spent preparing for a case, but that the tribunal should make an assessment based on guidelines to be set out in the Employment Tribunal Rules of Procedure".
So it is not just a payment, it is an arbitrary payment. It is not what the party has actually lost in preparing the case but according to the rules dreamed up by the Secretary of State a priori. It is nothing to do with what has really happened, merely the penalty on the applicant, as the Law Society says, because it will apply to applicants disproportionately.
6.45 p.m.
Baroness O'Cathain: I have just been looking at the Explanatory Notes because the noble Lord quoted part of them at paragraph 63. It states:
- "power by regulations to authorise tribunals to order that one party make a payment to the other in respect of the time spent by that other party in preparing his or her case".
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