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Lord McIntosh of Haringey: The answer is that the concerns are very different and conflicting. I want to say one more word about a complex form and a simple form. It is not necessarily true that a simple form is better from the point of view of the applicant. It may be better if, for the sake of a little more complexity, the applicant is encouraged to make a better case at the beginning and not to lose part of his claim. As a survey researcher and question designer, I place that into the thinking pot.

Lord Gladwin of Clee: If all the consultation that my noble friend mentioned has taken place, why do we not amend the form that we use at present? As my noble friend said, this problem is of the Government's own making. I was asked why I was concerned at the Secretary of State at the DTI being a party. Of course, I recognise that only a few cases are involved. I am no lawyer, but this is one of the first things that the lawyers who practise employment law throw at me. Of course, I am supposed to defend everything that the Government do, and in this area I do my best.

There is an air of suspicion. The Government should be working to get rid of it, and they can do so in Grand Committee. The opportunities will arise, in particular, when we deal with the amendments to which my name is attached. If there is a problem in relation to the application form and the notice of appearance, why do we not alter both forms ET1 and ET3? Why should we accept what are regarded as draconian powers? The answer is: in order to reduce the number of applications which go before tribunals.

However, the answer that I have given is not that one. I believe that the way to reduce the number of tribunal hearings is by introducing a system into the 600,000 workplaces that do not currently have a procedure. However, that goes down like a lead balloon because those workplaces believe what they

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have been told—that is, that the intention of the Government is to reduce the number of tribunal cases. This is seen as a way of doing so. I know that the Minister says that that is not the case but, if the nature of the application to tribunals needs to be altered, then we should alter the one that we already have.

Lord McIntosh of Haringey: I repeat what I said. The new forms will not be designed to deter applicants or respondents, even inadvertently. If that means that we build on or adapt the existing forms rather than create new ones, I do not simply believe that that is possible—it is highly likely. One does not start from scratch when one has a variety of alternatives. One certainly starts with what one currently has and sees in what ways it can be improved from the point of view of both applicants and respondents.

Perhaps I may talk about the lawyers and talk to my noble friend Lord Gladwin. I believe that I have given all the assurances that I can give about the Government's intentions. However, suspicions relate to perceptions and not only reality. It is our duty to seek to counter suspicions which are based on misconceived perceptions as well as those which are based on realities. My offer to reconsider whether the scope of this clause can be confined more closely to the objectives which I set out in defending the clause applies precisely because I am aware that we must be concerned about suspicions, whether or not they are well-founded.

Lord McCarthy: I want to raise only a few points. First, we shall undoubtedly table some new amendments which will enable the Government to modify this and many other clauses. We thank them for looking at those amendments.

Secondly, the position in which the Government find themselves and the perceptions about which they are concerned are their own fault. Routes to Resolution refers to the 40,000 cases. Alan Johnson's introduction to the document talks about how more disputes are ending up in litigation. As we have argued time and again, there is no evidence for that, and there is no proportional increase in litigation. In response to Routes to Resolution, the combined effect of putting forward a whole series of proposals—not only in relation to Clause 25—is an estimated reduction of between 30,000 and 40,000 applications compared with current levels. That becomes a government objective; it becomes a government aim. There it is—the combined effect of all the proposals is an estimated reduction of between 30,000 and 40,000 applications.

If one really wants to change the atmosphere, one should change that target—withdraw that target. While that target is there, you will be consistently, persistently misunderstood. That is the first point—or the second point actually, because I said that we will take these amendments.

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The third point is that you say, "Well, we have all these powers under the clause. You come along and say that they are possibly, or could be, the basis of abuse". One might say that everyone could say that—everything can be abuse. However, careful drafters and careful legislators know that. They look at their legislation and say, "Let me not demand anything more than I essentially, necessarily require. Then that suspicion cannot be so easily placed upon me".

Frankly, we cannot see why the Government cannot carry on with the same old tribunal form that we have now. They do not tell us why they need this tremendous set of powers set out in Clause 25. Until the Government come to terms with what they have on the face of the Bill, just as they must come to terms with the claim that they make, they will consistently be misunderstood.

When I first read the document, and put it together with other statements made by Ministers in the House, it seemed to me that the Government were making vast claims for what they intend to do. I know that they have taken it back, but that was the impact effect. I am sure that that is what many people thought and they really ought to have done it rather better.

Finally, successive governments have attempted to do something of this sort. The Conservative government tried to do something of this sort. My friends who sit and work on tribunals will not thank me for saying this, but it is an open secret. The reason tribunals work as well as they do is that when such things are shoved in legislation, sensible, intelligent members of tribunals know how to mitigate their consequences.

There are not many pre-hearing assessments. There could be many more but there are not because they are not considered to be helpful. One could put in powers to get costs out of applicants but, on the whole, the tribunals do not take costs from applicants because they do not think it will help. One could say that the applicants should be fined if they make vexatious presentations, but the tribunals say that they do not really think they have any vexatious presentations. Many provisions could be put on the face of the Bill but tribunals have an expertise and skill in making the system continue to work, much as it worked in the past.

However—this is where Clause 25 comes in—if Clause 25, by accident or design, discourages people—if they look at it and decide they are not going in for that—there is nothing the tribunals can do. The cases will not reach the tribunals. If Clause 25 works, in the sense that some people in the CBI would like it to work, there will be a fall off in the number of tribunal hearings because people will not get to the tribunals. Nobody can mitigate the consequences of this legislation if they do not have a simple, easy way of access to the tribunal. That is why, although we are not dividing in the Committee, we believe that the Government should take this clause away and re-write it.

Clause 25 agreed to.

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6 p.m.

Clause 26 [Determination without a hearing]:

Baroness Miller of Hendon moved Amendment No. 87:


    Page 34, line 25, at end insert "if it is agreed by the parties to the proceedings"

The noble Baroness said: I should like to speak to Amendments Nos. 87, 88 and 90, which are grouped together. The first two amendments deal with Clause 26, the marginal note to which describes its purpose as "Determination without a hearing". Amendment No. 90 relates to Clause 28, which deals with pre-hearing reviews.

The purpose of Amendment No. 87 is to make it clear that the regulations do not empower the tribunal to dismiss an employee's case it considers unsustainable simply on the basis of reading the application and any supporting documents. It also equally ensures that the tribunal does not give judgment against a respondent on the basis that it has decided against him without any need to consider his defence and any oral evidence. In other words, this amendment is tabled to ensure that there is no summary dismissal of a case without a hearing except, of course—and this is the point—if the parties consent.

The consent of the parties is to be an essential ingredient of any procedural regulation allowing the determination of the case without a full dress hearing. There is, in fact, ample precedent for such a limited power to dispense with an oral hearing. Some cases in the High Court are dealt with purely on the basis of affidavit evidence, including, for example, applications for summary judgment under Civil Practice Rule 24.

Quite incidental to that, years ago that rule was numbered 14 and there was a useful jingle, which all law students had to learn, which went,


    "Order 14,

What does it mean? Well it's the end, Unless you get leave to defend".

There is also the important example of planning appeals, the vast majority of which are dealt with by written submissions to the inspector, including submissions from objectors among the general public who are not actual parties to the application.

So we can agree that there are circumstances where an oral hearing could be dispensed with and to that extent we agree with the Bill as it is drafted. However, that summary dismissal can take place only if both parties agree, otherwise, their rights under the convention to a fair and public hearing will be infringed.

The Minister may tell us that this could be covered by the regulations, but on the other hand it may not. We do not know what the regulations are going to say and, in turn, the regulations themselves can be altered by the Secretary of State. The purpose of this amendment is to ensure that consent of both parties must always be had or a hearing of some sort must take

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place—including such as I shall mention in relation to Amendment No. 90—before the tribunal takes upon itself to deprive a party who wants it of a hearing.

Amendment No. 88 is to provide for a deficiency in the clause. It sometimes happens that a party launches a claim or indicates that a claim is to be defended, then fails to turn up at the hearing. This amendment allows for summary judgment to be given without going through the formality of the attending party having to adduce all the evidence and perhaps keep witnesses hanging around while other witnesses give evidence or while the case is explained in great detail to the tribunal.

It is quite right that the tribunal should have a discretion to adjourn the case to a later date. However, to do so could add to the expense of the attending party and the inconvenience of the tribunal and witnesses alike. This amendment allows the tribunal—except where it is convinced that there is reasonable excuse for non-attendance—simply to exercise its discretion to treat such non-attendance as an admission of the other party's case or of the abandonment of its own. The Government will presumably be pleased to see a procedure where public and witnesses' time and expense can be saved.

Amendment No. 90 deals with pre-hearing reviews which tribunals will be authorised to conduct. In recent years, the civil courts have introduced a system of pre-trial review, when issues such as the number of witnesses to be called, how many expert witnesses per side, what admissions of fact either party is prepared to make, the potential length of the hearing and a myriad of other procedural points can be disposed of with a view to speeding up and shortening the actual hearing. We welcome the addition of this facility to the tribunal procedure, which is introduced by Clause 28.

However, the Government have missed an opportunity further to improve the tribunal procedure, which my constructive amendment is designed to do. I just explained that in civil cases—and again I remind the Committee that the same applies to tribunal proceedings—the court has the power under Civil Practice Rule 24 to give a summary judgment against a defendant in cases where it is satisfied that there is not a valid defence.

In the civil courts it is also a fact of life that the district judge or the High Court Master conducting the review can sometimes give an indication—which is lawyer-speak for "a nod and a wink"—as to the way the judge thinks the case is likely to go. In the civil courts, where the parties are usually represented by trained lawyers, that indication is usually enough at least to send them off to the negotiating table. Let there be no mistake—many cases are brought before the employment tribunal which everyone knows are hopeless from the start, or in which the amount that the claimant is likely to receive is out of all proportion to the time and expense that the case would involve. Equally, there are many cases in which the best advice that a respondent could be given is to pay up and to look cheerful while he is doing so because he does not have a case at all.

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Cases before tribunals, no less than civil cases before the ordinary courts, cost money to conduct, cause considerable stress to the parties on both sides, cost public money to accommodate and take up the time of public officials to manage and adjudicate on. That is to say nothing of the fact that the lists are cluttered with what will turn out to be no-hope cases, causing parties with what I may call genuine cases to have to wait much longer for justice.

This amendment gives the tribunal power comparable to the other civil courts—I emphasise the words "other civil courts"—to dismiss hopeless cases or hopeless defences. It does not require the tribunal to do so automatically. Of course, the words "reasonable prospect of success" give the tribunal a great deal of—I use a word that is dearly loved by the Government—flexibility. I hope the Minister will agree. I beg to move.


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