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Baroness Turner of Camden: I welcome much of what the Minister has said in response to this amendment. However, in view of the most recent exchanges, I do not see why our amendment could not be accepted. If it is the Government's intention that this should not act as a deterrent, we have said enough to demonstrate that there is ample evidence that, even at the present time, claimants are often put off and the question of possible costs acts as a substantial deterrent. If preparation costs, which could include managerial costs, support staff costs, personnel departments and so on—

Lord McIntosh of Haringey: On the amendment that we will bring forward on Report, I said that the two are mutually exclusive. We cannot have a claim for costs and expenses and a claim for compensation for preparation time for the same time period both being put forward.

Baroness Turner of Camden: I certainly welcome the Minister's comment to the extent that one cannot claim for both compensation costs and costs for the same time period. However, we shall need to look at the wording of that amendment when it is tabled. I am pleased that the Government have accepted that it is not just a question of leaving this to regulation but there has to be a change in the wording currently in the Bill and that there will be a draft amendment, which we shall have the opportunity of looking at before Report. That is important in view of the statements that have been made this afternoon by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Clause 22 agreed to.

Clause 23 [Employment Appeal Tribunal]:

[Amendments Nos. 77 to 81 not moved.]

Clause 23 agreed to.

Clause 24 [Conciliation]:

Lord Wedderburn of Charlton moved Amendment No. 82:

Page 33, line 29, leave out subsections (2) to (4).

The noble Lord said: Clause 24 is about conciliation. I take it to be common ground that nothing is more important than that we should have as many cases as possible settled by conciliation or other means before they go to the tribunal.

We do not quite understand parts of the clause. At first, it looks rather technical but, in fact, it amends, especially in subsections (2) and (3), which we are moving to delete. It does so rather in a probing sense

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because we do not quite understand the provision. The provision seems to us not, as the Explanatory Notes suggest, to encourage conciliation but to diminish the opportunities for conciliation.

Clause 24(2) relates to Section 18 of the Employment Tribunals Act 1996, which I immediately say is a most important section because, of course, it is the section whereby any case which is presented to a tribunal immediately goes, as a matter of course, to the ACAS conciliation officer. Although there is not a lot in our discussions about conciliation officers, nothing could be more important, in our view, than the function of the conciliation officers.

Section 18 is to be amended in cases where,

"the fixing of a time and place for a hearing",

has been postponed for,

"an opportunity for proceedings to be settled by way of conciliation and withdrawn".

That is a very important period. because postponements are often the period in which conciliation can take place.

During that period, under the amendment, where the conciliation officer at the moment has a duty to be continuously interested in the case and a duty to consider any step that he can take towards conciliation, that duty is to be abolished. Instead, he is to be given a power.

As I understand it, that would leave the conciliation officer in a much less favourable condition to promote a conciliated settlement. He has a power to go on with conciliation, but he has no duty to do so. Therefore, if he comes back to the parties in this period of postponement and says, "I think I can help you further", one of them—it may be the respondent/employer—can say, "Go away, you have a power, but you used to have a duty". How will that assist conciliation? Why get rid of the duty of the conciliation officer who can go on and continue to be interested in the case?

Similarly in subsection (3), Section 19 is amended. That is the section which, as the Bill makes clear, requires employment tribunal procedure regulations to provide for the originating application of an employee, and notice of appearance by the employer, to be sent to the conciliation officer. There is no more important step in employment tribunal procedure than that the case that is presented to the tribunal should go automatically to the conciliation officer. I think I am right in saying that has been so since 1971, but the noble Baroness, Lady Miller of Hendon, whose government was responsible for the Act in 1971, will tell me if I am wrong. I think that has always been the case, and it is absolutely fundamental to procedure to introduce conciliation and the opportunity for conciliated settlement from the very beginning.

The Government want to introduce the phrase,

"except in such as circumstances as the regulations may provide".

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What circumstances could justify the lack of notification to a conciliation officer that there is a dispute? Why should one keep that from the conciliation officer? Similarly, in the next paragraph, a paragraph which assists

"to give an opportunity for conciliation) shall cease to have effect",

in Section 19 of the same Act. We find it mystifying to understand—subsection (4) seems to us to lead in the same direction—the fact that this will give rise to fewer opportunities, to fewer duties and to fewer chances of conciliation than the Act as it stands at the moment.

What we do not understand is how that could possibly be in pursuit of the Government's objective of cutting out 40,000 cases a year. I have looked up the response to consultation and I see that they say there will be a year's timelag in achieving that objective. However, it could possibly be that having less consultation, fewer opportunities for consultation, fewer duties of consultation by conciliation officers, could possibly lead to any diminution of tribunal hearings. That is more likely to lead to an increase.

I await the Minister's explanation of this diminution of opportunities for conciliation with great interest and ask him whether the Government will reconsider this clause. I beg to move.

4.30 p.m.

Lord McIntosh of Haringey: Let me begin by saying as flatly as I have made some other comments that is not the intention of the Government to diminish conciliation; to bring about a diminution of opportunities for conciliation. What we are doing with this clause is much more limited and specific; that is, trying to diminish what is called settlement on the steps of the tribunal. I refer to last-minute settlement. The approach of having a fixed period for consultation, which can be extended and I will go into that in more detail, was debated at considerable length during the consultation period over the last year. As a result of that, ACAS has concluded that,

"a deadline could help timely settlement".

That is the purpose of this clause. There is to be no reduction in conciliation and no pressure on ACAS, or from ACAS, to reduce the amount of conciliation that is carried out. We intend simply to make the process more efficient in one specific way; that there will be no discouragement of any kind, but encouragement to have the conciliation carried out within a period known to both parties. The fixed period of conciliation is a clearly defined period, where the services of ACAS conciliators are guaranteed to be available to the parties. Outside the fixed period, ACAS has no obligation to provide those services, although it may choose to do so. The length of the fixed period will be determined in regulations which will be drawn up in consultation with ACAS, the tribunals judiciary and the Employment Tribunals Service.

The aim is to raise the profile of conciliation, to focus the minds of two sides on reaching settlement during the conciliation period. As I understand it—and I have far less knowledge of employment tribunals

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than many of the Members of the Committee, as has become rather obvious—the problem is that too many people start considering the case seriously only as the hearing date approaches. However, if we have a fixed starting and ending date, they are encouraged to turn their minds to the conciliation process earlier and think rather harder about the prospects of achieving an amicable settlement.

ACAS has been closely involved with the development of this policy since it started. We recognise the valuable and successful work that ACAS carries out in conciliating disputes and we have no desire—it would be mad for us to have any desire—to cut back on its involvement in the resolution of disputes. On the contrary, the aim of this clause is to focus attention on the conciliation process. The number of claims that are subject to conciliation will not be reduced at all by this clause.

Let me give some detail on the subsections. Subsection (2) provides that an ACAS officer's duty to conciliate cases reverts to a power after a fixed period. This means that once the fixed period is over, ACAS officers will no longer be duty-bound to conciliate further. They will have the power to do so if they believe that there is a strong chance of settlement being reached but they can otherwise turn their attention to other cases.

Subsection (3)(a) states that the regulations may provide for circumstances where the Employment Tribunals Service might not send the application and response forms on to ACAS. The intention of this clause is that ACAS will not be send details of uncontested cases where the respondent has not returned the IT3 response form or engaged in the process in any way. Again, this enables ACAS to concentrate attention on cases where conciliation can really bear fruit.

Subsection (3)(b) makes consequential amendments to subsection 19(c) of the 1996 Act.

Subsection (4) amends Section 19 of the Act to reflect the change in ACAS's duty to conciliate. This simply ensures that parties will be notified that after the end of the fixed conciliation period, the services of a conciliation officer might not be available to them.

This is a matter of process rather than change in the effectiveness and availability of conciliation services. At the moment, conciliation can take place in parallel with the tribunal processing. The hearing date is fixed with reference to how conciliation is progressing. Surely, if conciliation is possible, it is desirable to attempt to complete the conciliation process and then the question of setting a tribunal date would not be necessary. Too often, parties do not fully consider the case until the hearing date is set. If we make it clear that the time for conciliation is fixed, then they should consider the process earlier.

Nobody has any less right to conciliation. Nobody has any less right to a tribunal hearing as a result of this clause. All it seeks to do is to eliminate or reduce one of the defects of the procedure, as it has been observed in the course of the consultation process.

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