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Lord McCarthy: I hope it keeps fine for the Government, but I do not think they have appreciated the things that cause people not to take decisions until they get inside tribunals. The noble Lord talks about settlements on the steps. That is a new one. I hear about settlements in the side room. What happens is that ACAS tries conciliation but the employer will not move. Or, if the employer will move a little, the applicant will not move and, therefore, conciliation runs out. Conciliation runs out very fast if the two sides will not move. It may just require a few telephone calls and, if the two sides will not move, there is no more point in conciliation. However, one cannot immediately have a tribunal because the resources are not there. There is a queue.

The tribunal service is extremely reluctant to tell us how long that takes; in fact, one cannot find out how long it takes between the moment when ACAS throws up its hands and says, "This is useless!" and when it actually gets in the room for a hearing. Nobody knows. It quotes figures such as, "70 per cent get it settled in six months", but that reveals nothing. Nobody says precisely and, if asked, people who know say, "It varies enormously". What happens, however, is not settlements on the steps but settlements inside—just before they come in. They ask for an adjournment or for an extra half hour. Why? Because the lawyers have not read the papers and they all sit in the room and waste time until they come in. So if the noble Lord wants something to prevent settlement in the side room, I do not know what it is.

Lord McIntosh of Haringey: I am sure the noble Lord is right. What he says has the ring of truth to me and I make no distinction between the side room and the steps of the tribunal. It will still happen, even if this clause is agreed to without amendment. We just hope that that will happen a little less if more attention is focused on the conciliation proceeding in advance. I am very modest about expectations of this clause.

Lord Wedderburn of Charlton: So my noble friend is saying that the Government hope that conciliated settlements—at the last minute, I suppose—will happen a little bit less and that there will be more hearings.

Lord McIntosh of Haringey: No.

Lord Wedderburn of Charlton: There will be hearings if there is no settlement, I can assure the Minister. If there is no settlement, there will be a hearing—unless, of course, the poor employee applicant is prohibited from presenting his case; we shall come to that in Clause 33.

I really think that the Government have been badly advised on this matter. I hesitated to say this but I have to tell the Minister that one very experienced tribunal chairman has said to me, "This clause must have been drafted by people who have never been in an employment tribunal". I have to say that now because such a stout defence of the provision has been advanced.

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I direct my noble friend to particular points that he did not answer. On subsection (3), he gave a reason why particular circumstances should avoid the notice of appearance being sent to the conciliation officer, because these were cases that were not contested. He did not give any reason whatever why every originating application should not be sent to a conciliation officer. I ask him again, under what circumstances should an originating application not be—as it always has been—automatically notified to a conciliation officer?

Lord McIntosh of Haringey: The answer—

Lord Wedderburn of Charlton: If I may, I shall complete the point. If we had Ministers popping up and down each time someone makes an arguable point, our procedure will dissolve into a rather funny afternoon.

Lord McIntosh of Haringey: All right.

Lord Wedderburn of Charlton: I proceed to the second matter that I want to raise with the Minister. He says that the deadline on conciliation will help timely settlements. I appreciate that sometimes it is very inconvenient for people where there is a settlement at the last minute, but everybody I know in tribunals knows perfectly well that a large number of settlements come late on. If you have ever been near a tribunal, you always hear about settlements coming late; and that is nothing special to tribunals. It happens in all courts. If the Government do not like the judicial process, they must say so; however, last-minute settlements are a feature of judicial processes.

This amendment is apparently the product of a tiny but inexperienced mind because we must have conciliation first and then we must have the rest of the procedure. Life is not like that! You cannot deal in tidy concepts with conciliation and settlement. The Minister has given us absolutely no reason whatever why the duty of the conciliation officer should become a power. Also, he has not given us any reasons involving a party who wants conciliation to continue when the other party does not—that happens; one party wants more conciliation and the other party does not. Will not the conciliation officer, having no duty to conciliate, be in a weaker position, in which he merely has the power to do so if the parties want him to? He will be in a much weaker position; of course he will. I do not believe that ACAS has given advice to the contrary on that point; it is such an obvious point.

First, what about Section 19 and originating applications? Secondly, why will last-minute settlements not give rise to more hearings? Does the Minister really think that last-minute settlements are not a natural feature of judicial process?

Lord McIntosh of Haringey: I thought that I had answered both of those questions. On the question

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about the circumstances in which papers will not be sent to ACAS, the answer is: only in rare circumstances, such as uncontested applications.

Lord Wedderburn of Charlton: We do not know whether it is uncontested.

Lord McIntosh of Haringey: If there is any question of it being contested, it will not go.

Lord Wedderburn of Charlton: I am sorry; the Minister says he answers questions but then he changes them. I return to my question. When you get an original application, you have no idea at all whether it is going to be contested; you automatically send it now to the conciliation officer. Why stop that?

Lord McIntosh of Haringey: I do not see any reason to stop that.

Lord Wedderburn of Charlton: All to the good.

Lord McIntosh of Haringey: That does not need an alteration to the clause; the clause does not say that. The other significant issue that is being raised returns us to the point made by the noble Lord, Lord McCarthy, about settlement in the side room and what happens after the fixed period. I am very modest in my expectations of the effect of this clause. By focusing attention on a period in which conciliation is the first priority, there is a possibility that there may be some reduction in last-minute settlements. I did not claim—I would not claim—that there would ever be an elimination of last-minute settlements.

My noble friends Lord Wedderburn and Lord McCarthy both say that last-minute settlements are a feature of the judicial process, just as they are a feature of the tribunal process. We are very modestly trying to turn attention to a way in which it is possible to reduce the number. We may be wrong, but if we are wrong, no harm is done by having a fixed period. There is no threat to the applicants, there is no threat to the tribunal procedure and there is no diminution of the availability of conciliation or of the tribunals itself.

All of those matters are in the remit of the Employment Tribunal System Taskforce, which is looking at the overall deficiency of the operation and will advise on how to improve it and on whether more investment is needed. If that is the key—if more investment is needed—more investment will be made available.

Lord Wedderburn of Charlton: In view of the Minister's opposition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon moved Amendment No. 83:


    Page 34, line 7, at end insert—


"( ) The Secretary of State shall within 120 days of this section coming into force, prepare and publish an assessment of the additional resources required by the Advisory, Conciliation and Arbitration Service to facilitate the conciliation process as provided for in this section."

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The noble Baroness said: The amendment follows the philosophy that lies behind a similar amendment that I proposed to Clause 21; that is, Amendment No. 58. I believe that at that time the noble Lord, Lord McCarthy, indicated that he supported the proposal with regard to ACAS, although he suggested that there were difficulties in trying to assess the costs. However, he agreed with the principle that I was posing.

Parliament and, indeed, the public are entitled to know what the cost of implementing the Bill is going to be. One of the major impacts of the Bill will be the increased demands that will be made on the Advisory, Conciliation and Arbitration Service—ACAS. Despite the conciliation procedures laid down in Schedule 2, which hopefully will head off an unknown number of cases from employment tribunals, there is bound to be heavily increased demands on the resources and facilities of ACAS. Both sides of industry have expressed concern about the adequacy of those already stretched resources.

As my honourable friend the Member for Runnymede and Weybridge pointed out when this amendment was debated in the other place, we are concerned that the Government are imposing a greater use of ACAS without at the same time giving it adequate resources to provide the necessary service.

If the issue of providing ACAS with adequate resources is not addressed, then conciliation will become a mere piece of window dressing, which could simply delay the process and would fail in its objective of reducing the number of cases reaching tribunals. This would occur because there would simply not be enough conciliation officers to operate the process.

The Minister in the other place told the Committee there, as I imagine the Minister here might very well tell us, that the changes the Government are proposing have been made in full consultation with ACAS. The Government agreed that there would be resource implications, but all the Minister could say about them in the other place was:


    "They would be the subject of ongoing discussions between my Department and ACAS".—[Official Report, Commons Standing Committee F, 11/12/01; col. 99.]

That is Whitehall-speak for, "ACAS is asking for as much money as possible, and the Treasury wants to pay as little as it can get away with".

As I say, the Minister told the Committee in the other place at col. 100 of Hansard that:


    "Resource implications . . . would be the subject of ongoing discussions between my Department and ACAS."

As regards ongoing discussions, perhaps the Minister can tell us what stage the haggling reached in the three months before he made that statement? The Minister claimed that the Government do not accept that extra resources will necessarily be needed. How can they say that if, as the Minister in the other place admitted, also at col. 100,


    "The proposals . . . are predicted to have a considerable impact on ACAS's case load"?

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Was the Minister suggesting that ACAS has surplus capacity at the moment? I doubt if ACAS would agree. The Minister in the other place also told the Committee at col. 100—and I would again like to quote his exact words—


    "Requiring the Secretary of State to prepare and publish an assessment of the additional resources required by ACAS . . . is not likely to be helpful."

To whom is that not likely to be helpful? I assume that ACAS would like to know what resources it is likely to be given. I am sure that Parliament would like to know how much money it is going to have to provide and whether that money will be adequate to fulfil the ambitious plans that the Government have for this new conciliation regime.

I am sure also that employers and the unions, and individual employees, would like to be given some idea how practical this whole concept is likely to be in the light of the resources that will be made available to it. I cannot imagine that the Government and ACAS have absolutely no idea of what is going to be involved.

The amendment, of which the Government have already had three months' notice since it was debated in the other place, and of which they will have several more months while this Bill completes its passage through Parliament, does not ask the Government to publish their assessment tomorrow, next week or even next month. It gives the Government 120 days; that is, four whole months, from the passing of the Act—and incidentally it is one month more than my honourable friends proposed—to work out the cost and to publish the figures, which just shows how very reasonable I am. The Government are prone to ask Parliament for blank cheques, and what we are asking for is for the Government to promise to fill in the details and tell us what they are. I beg to move.

4.45 p.m.

Lord McCarthy: I am absolutely certain that the Government have absolutely no idea about that, but how could they have? How could they have in 120 days? If the case works out as the Government hope it works out, and they cut 40,000 applications, of course there would be less work for ACAS. There would be less work for everybody.

If, on the other hand, what Judge Prophet thinks will happen does happen and this new procedure generates more and more disputes under more and more headings, then of course there will be more work for ACAS. If the encouragement of the principle of postponing a hearing produces more conciliation and fewer hearings, then there would be more work for ACAS. If my noble friend Lord Wedderburn is right as regards the fixed term and giving ACAS just a power and not a right and that discourages it so that it will be missing and so will the hearing, and the poor applicant is stuck in the middle with nobody doing anything, then there might be less of such work. I feel extremely sorry for ACAS. It is being loaded with a completely new system and nobody can tell it what the consequences will be. Certainly no one will know that in 120 days or so. After all, we will not know what is happening as regards the total number of cases for at

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least six or nine months. The Government may not invoke the whole Bill; they may not bring all the parts of the Bill into effect. So we have no idea about that matter.

I said earlier that I saw the reason behind the amendment, that I did not want the Government to accept it, but that I would like them to think about the problem that they have created. I said that because they have created a situation in which it is quite impossible for ACAS to say how far it will be required to deal with an additional caseload or a smaller caseload. Just remember, this is a service but it is not a service of life or death. These are not policemen, nurses or firemen. These are not the kind of people who can apply pressure to get money out of the Treasury. ACAS is in a delicate and difficult situation, and the Government should be aware of that.


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