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Baroness Turner of Camden: I also would like to support the case that has been made by my noble friend Lord Wedderburn of Charlton. Like most trades union officials, I have had some experience of taking cases to tribunals. The usual, very frequent experience, is that an individual who wants his case taken becomes totally obsessed with his case and refuses to accept that he has a weak case even though one may feel that he has. Therefore, often one has had the experience of taking what one may believe to be a weak case to a tribunal, but, nevertheless, when one gets there, one somehow manages to persuade the tribunal that there is a case there.
It seems to me that to have a situation in which the tribunal can strike out weak cases without them being heard is not a very good idea at all, and would certainly have a very deleterious effect upon individuals who otherwise might feel they had a case and would want their day in court. I hope that the Government will look with some favour upon the amendment.
Lord Rotherwick: I briefly would like to say that we agree with the amendment as it substantially accords with our Amendment No. 90.
Lord Sainsbury of Turville: I find it rather difficult to substantiate the last point. It seems to me that Amendment No. 91 takes the opposite approach to Amendment No. 90 that we discussed earlier, in that it seeks to make it more difficult to strike out cases. As I said, we envisage that strike out will occur only very rarely.
What the clause does is to take out the implication that the preliminary hearing review is in some sense preliminary and must therefore be followed by a full hearing.
Rule 15, to which the amendment refers, provides power to strike out an originating application or notice of appearance at any stage of the proceedings on the grounds that it is scandalous, misconceived or vexatious, or that the proceedings are being conducted in a scandalous, unreasonable or vexatious manner. As I have already said, we expect proceedings to be struck out only when cases are hopeless; that is to say, those at the extreme end of the spectrum covered by the terms "vexatious", "misconceived" and so on. I stress here the word "misconceived" because it is those cases to which the Explanatory Notes refer.
In the light of Clause 28, it will in due course be necessary to amend Rule 7 of the main employment tribunal rules of procedure to allow for strike out. The new rule will need to specify when the strike out power may be exercised, reflecting what I have said about it being used only in extreme cases that are scandalous, unreasonable or vexatious and not simply those that are weak in the terms that I think the amendment refers to.
In the light of what I have said, I hope that the Committee will agree that this amendment is unnecessary and that my noble friend will withdraw it.
6.30 p.m.
Lord Wedderburn of Charlton: I appreciate what my noble friend said and I am grateful to him for trying to explain what the Government intend, but really, we have to take the Explanatory Notes as meaning what they say. There was a discussion recently in the Committee about plain English. The Explanatory Notes are absolutely plain: they want the tribunal—and this is important—at a pre-hearing review to have power to strike out weak cases.
My noble friend the Minister has taken his stand on quite different grounds; he says the measure applies to hopeless cases. In so far as hopeless cases are cases that do not disclose a cause of action or any reasonable grounds at all for the claim, that is what our amendment says. The amendment offers the Government something on all of this; it does not leave things in limbo and obscure.
I must say that I am surprised that my noble friend did not say explicitly that he would take away this amendment and think about it. He says it really applies to hopeless cases. Well, I suppose our amendment applies more or less to hopeless cases. He says he wants the power to apply the measure to the cases in Rule 15, but our amendment says it should apply to cases in Rule 15.
What else does he want? Does he want the measure, as the Explanatory Notes say, to apply to weak and very weak cases? If he does, we shall oppose it, and we shall oppose it on Report, because this is going far beyond what is proper not to allow. There are enough clauses in this Bill that do not allow workers their day in court and try to stop them arguing anything. The power to strike out is a nuclear weapon in the hands of the court or tribunal and it should not be exercised except within the compass of the traditional principles of the ordinary courts.
This is an attempt, it seems—at least, I thought it was an attempt—to give the tribunals a wider power. That is what the Explanatory Notes say. But if it is to apply only to hopeless cases or, as my honourable friend the Minister appeared to say in another place at columns 114 to 115 of Hansard on 13th December, the Government are just tidying up an anomaly and just want to give a power to strike out at pre-hearing review only where this is a hopeless or impossible case, that is what our amendment offers. I hope that my noble friend will reconsider this matter but, if he will not,
then we shall have no prospect except to come back to it on Report. All I can do is to beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 92:
- Page 35, line 6, at end insert—
The noble Lord said: This amendment relates to Section 9(3) of the Employment Tribunals Act. It is about deposits. There is a special rule in the tribunals which operates to the disadvantage of an employee who is ill-advised enough to bring a very weak case. If ICI brings a very weak case in the High Court, it is not asked to pay a special deposit, but if a worker brings a weak case in the tribunal he can be asked to pay a deposit. It can come back to him if he wins but he can lose it. I have no objection to this system, although at the time that it was introduced it was discussed whether it was desirable. I would like the Minister to say something about its operation in response to this amendment, because this amendment would strike out the Secretary of State's power to increase the deposit. Of course, it was recently increased to £500 from, I believe, £150. The question is whether the logic and experience of deposits should leave the Secretary of State the power by regulation—I stress that—simply to propose an increase. Regulations increasing the amounts of compensation, deposits or anything else frequently go through both Houses but they are rarely discussed and there is no chance of amendment. My noble friends and I see no reason at all why the power to increase deposits by regulation should continue, unless we have some news about what is happening.
How many deposits have there been? How many deposits have been forfeited? How many deposits have contributed, in the view of tribunals or the presidents of the tribunals, to the relaxation and diminution of very weak cases? What research has been done on the question of deposits? If this power to increase the deposit is retained, is there any intention of using it? If one does not want to use it, why does one want it? If it is not broke, do not fix it. That is a general principle and my noble friend Lord Gladwin was advancing it to the Government. This amendment raises the same point. Let us have some news about deposits and see whether there is any reasonable prospect of any kind that anyone will want to increase them. I beg to move.
Lord Sainsbury of Turville: Section 9 of the Employment Tribunals Act 1996 permits employment tribunal procedure regulations to include provision for pre-hearing reviews and they do include such provision. Pre-hearing reviews may be held where an application or a defence appears to be weak. If, having conducted such a review, the tribunal finds that a case has no reasonable prospect of success, it may require the payment of a deposit before the case can proceed to a merits hearing.
When this piece of legislation was made in 1989, the amount of the deposit was not to exceed £150. Last year that was increased to an amount not exceeding
It seems to me that, even in these days when the Government have very largely dealt with the problem of inflation, on a Bill such as this there should be the ability to increase the sum if, because of inflation or other reasons, it is thought sensible to do so. I do not believe that there is any intention to do so at this stage and, in fact, the system seems to work reasonably well.
The number of pre-hearing reviews in the financial year 2000-01 was 299 and the number of deposits ordered was 234, of which 48 were paid—those 48 were all applicants. Of those 48 cases, 19 were subsequently withdrawn, four were struck out—for example, for want of prosecution—two were not yet decided, three were settled, 11 were lost and had to pay costs, eight were lost but no costs were awarded and one was won.
Strike-outs at a pre-hearing review will be exceptional and only when a case is so weak as to be hopeless. Going back to the two previous years, in the past two calendar years—1999 and 2000—there were two instances in which applicants won their cases after a deposit was ordered. However, in one of those cases, it was the employer and not the applicant who was ordered to pay the deposit although it was refunded to him after the full hearing. Those figures suggest that the system is working rather well. It seems perfectly reasonable to have the flexibility of such a power, which, after all, has been exercised just once in order to ensure that the maximum amount of deposit is adequate if circumstances change. I therefore do not see merit in the amendment, which would do away with the power, and accordingly cannot accept it.
"( ) Section 9(3) of that Act shall cease to have effect."
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