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Baroness Miller of Hendon: I was surprised to hear the noble Lord say that he hopes the Government resist my amendment. I quote his words of last Wednesday,


In fact, he went on to say that it was quite difficult to do that, and I accept that. However, in principle, he agreed with me. Therefore, I was surprised when he started by saying he hoped the Government would resist my amendment.

Lord McIntosh of Haringey: I do not want to intrude on that but, if I may concentrate on the amendment, it is important to recognise that, since the issue was first raised, we have set up the Employment Tribunal System Taskforce. Clearly, the Employment Tribunal System Taskforce under Janet Gaymer cannot look at the employment tribunal system without looking, to some extent, at ACAS which is complementary to it. The terms of reference of the taskforce are to make recommendations on how the service can be made more efficient and cost-effective for users, and advise on the need for new investment to meet any revised service objectives and performance measures. If that is not instructing the Government on independent advice to look at the resource elements, I do not know what is.

As a matter of historical fact, the funding of ACAS has increased considerably over recent years. If I pick the period between 1998-99 and now, in 1998-99 it was £26.2 million, in 2001-02 it is £36.6 million. That is a substantial increase and it shows that the Government, if presented with arguments for an increased used of conciliation, are prepared to provide the funding for that increased use of conciliation. On that basis, we do not believe that a requirement for a formal review of the effect of the conciliation clauses on the resources of ACAS is necessary. We believe that that kind of review goes on successfully all the time.

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Lord Wedderburn of Charlton: Before my noble friend sits down, he mentioned that this is relevant to a subsequent amendment but it will save time if he would just say a word about it now in addition to what he has said. He mentioned the Employment Tribunal System Taskforce. As we are discussing questions of parts of the Bill coming into force, are we going to wait to see parts of the Bill not coming into force until we have the report of the Employment Tribunal System Taskforce? Is that the intention? So we shall have to wait not merely for the regulations but also, and I am thinking aloud, the Employment Tribunal System Taskforce report before we can know what the position is on a variety of matters. This taskforce has been a matter of mystery to some people. It is now fully established and its membership has finally been announced. It is to report, I believe, in the spring.

Lord McIntosh of Haringey: Yes.

Lord Wedderburn of Charlton: Will we wait for that before parts of the Bill come into force?

Lord McIntosh of Haringey: If it is in the spring, clearly it will be reporting before the Bill comes into force—that is inevitable. However, it is probably better if, on the basis of the most up-to-date information I can obtain, I write to the noble Lord, Lord Wedderburn, and Members of the Committee who have taken part in this debate on the timing of the taskforce report and the timing of this Bill.

Lord Wedderburn of Charlton: I am grateful.

Baroness Miller of Hendon: I thank the Minister for his reply to my amendment, and the comments made by the noble Lord, Lord Wedderburn, which are quite helpful. I would be very grateful to receive the letter in due course. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

5 p.m.

Clause 25 [Power to delegate prescription of forms etc.]:

Lord McCarthy moved Amendment No. 84:


    Page 34, line 12, after "State" insert ", after consultation with the Advisory, Conciliation and Arbitration Service, and with the Presidents of the Employment Tribunals for England and Wales and for Scotland,"

The noble Lord said: It was agreed that we would take Amendments Nos. 84, 86 and 85 in a group. In fact, Amendment No. 85 is rather different, but I shall come to that later.

In relation to the last amendment—and I hope that it will not be the case in relation to the points I am making today—spring will be a little late this year I fear. Last Wednesday I hoped that I would be able to move these amendments and gain some clarity about the Government's attitude towards Clause 25. But it was not to be. I then thought I might do it last

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Thursday, but we did not get to it then. Since we are halfway through today, I began to wonder whether we would come to it today. Gracie Fields had a song:


    "I took my heart to a party but nobody asked me to play, so I took the damn thing away!"

I wondered whether we would ever get to this list of amendments and I am glad that we have done so now.

They are quite simple. In my opinion, they take us into the heart of the Bill. The Bill has several hearts, but I refer to Clause 25, which deals with what the Government plan to do to what I call "dear old ET1"—or, if you like, "dear old ET3". No one seems to know what ET2 is.

Dear old ET1 is a simple little form which the applicant fills in. He does not need to fill it in, of course, because he can write a letter. At the moment, it sets off the whole process of getting some statement other than the last word of the employer. That is what we must always hang on to these days. It is the way that the worker gets something other than the employer's final word. All he or she has to do to start the process off is simply to fill in the form, or even just write a letter, and it all begins to move forward.

The Government propose to change that. We are very concerned that they propose to change that because we cannot find out from the statements that they have made, either in the Explanatory Notes or in the various statements that the Minister has made in another place, precisely what they intend to do. Precisely why do they need the regulations that they have mentioned in the Bill? We do not see why they need all these regulations.

My first two amendments, to which I shall speak very quickly, are designed merely to ensure that, before these very important regulations are published on how we shall have these new forms, there should be public consultation. Last time the Committee met, I said that public consultation was not enough because the Government have now developed a whole range of public consultations. One needs about five definitions of what public consultation means. In particular, we seek to put into the Bill the specific insistence that ACAS and the Presidents of the tribunals for England and Wales and for Scotland in particular shall be consulted when we receive the regulations—or when we receive the draft regulations before we get the final regulations—on the new forms which are to replace the existing ET1 and ET3.

There has been very wide criticism of the problem that the Government, I believe, have created for themselves by saying that they are changing this long-established system without saying in advance and on the face of the Bill or in the notes to the Bill precisely what they intend to do. Judge Prophet has said that he regards this as the prime instrument which is to reinforce the barriers to access and to dictate the contents of the forms of application. He even seems to be saying that this is a major constitutional change; that instead of the judges deciding the forms of application to justice, this time the Secretary of State is deciding the matter. Certainly, there is power there for the Secretary of State completely to re-make these regulations.

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I would read to you what the Bill provides:


    "(a) authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals.


    (b) authorise the Secretary of State to prescribe requirements in relation to documents to be supplied with any such form, and


    (c) make provision about the publication of anything prescribed under authority conferred by virtue of this subsection".

We consider that that provision could cover anything. I do not say at this stage that that is what the Government intend. I am saying that it would cover. I am saying that they are taking the powers to do so. It would cover, for example, discovering whether the applicant had a knowledge of Schedule 2 procedures. One might very well say that since the applicant has to say that he has carried out Schedule 2 procedures, he ought to know what Schedule 2 procedures are. Applicants also ought to know, since they are going into quite a new system in which all kinds of penalties exist, what the penalties are. Otherwise, is it fair that the applicant could enter the new system without realising what is involved? It is not enough now, but will it still be possible to ignore these new procedures and to write a letter? I do not know. That is one of the questions I would like the Minister to argue.

It could be otherwise for several reasons. On 11th December in Standing Committee, the Minister was very reassuring in so far as he went. He admitted that a great deal of concern had been felt about these proposals and he said:


    "Some concern was expressed, particularly by Labour Members, about people who might have problems with the language and feel uncomfortable about the issues. We are determined to design the form with those fears in mind and envisage a tick-box procedure".—[Official Report, Commons Standing Committee F, 11/12/01; col. 102.]

I am not quite sure how that will work. Perhaps one will have to tick to indicate which schedule one is going under and whether one is going to have a full procedure or the modified procedure. I do not know. The Minister continued:


    "We should be as user-friendly as possible, particularly for people who must get used to the changing arrangements. We will address that in the regulations. I should emphasise that we will make enormous efforts to ensure that the forms are as widely available as possible".

In the past, one did not require a form and the form was not prescribed by the Secretary of State. It was required by the tribunals themselves. It was not a standard form. The Minister went on to say:


    "They will be available from the employment tribunal service, job centres—or whatever their fancy new name is from April—and advice and law centres. They must be ubiquitous so that people have an easy access to them".—[Official Report, Commons Standing Committee F, 11/12/01; col. 103.]

That is all very fine and very reasonable. It sounds all right but it does not say what he is going to put in them. That is where I come to one qualification that we would like to see put in our Amendment No. 85. I shall read it to the Committee. It states:


    "Page 34, line 15, at end insert 'save that no requirement or prescription shall be made by regulations made under this paragraph which requires an applicant to guarantee his

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    observance of a statutory dispute resolution procedure falling within section 29, but that prohibition shall not extend to requirements relating to statements of honest belief'".

In other words—Members of the Committee may not like the way it is written and have a better way of phrasing it—what we are trying to do is to limit what can be demanded from the applicant. All that can be demanded from the applicants is that they give their honest belief about what they feel they know about the procedures and their observance of them and the fact that they have completed them. That of course means—I accept this—that the prime responsibility for seeing that the law is obeyed passes to the employer. The employer, after all, is the person who must be expected to know what is in the Bill and to see that the provisions therein are embodied in the contract and that the worker is given the contract, which tells him or her what has to be done. All the workers can be expected to say is that they have done their best to observe what is in their contract. Nothing more than that can reasonably be expected of the worker. He cannot be expected to go out and buy incomes data services or law textbooks. All the workers can be expected to say is, as we say in our amendment, that they have related themselves to, "statements of honest belief", on the form. That is the amendment, which seems eminently reasonable. I hope that the Government will accept it. I beg to move.


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