Previous Section Back to Table of Contents Lords Hansard Home Page

Lord McCarthy: I am not so fond of osmosis. I want to ask the Minister a direct question. What he said previously and what he says now will appear in Hansard. Is he telling me that in not less than 30 days he will publish a draft of his proposals for the regulations in Part 2 and Part 3 of this Bill on the web?

Lord Sainsbury of Turville: The noble Lord could amend that; within 30 days we will publish it. Is he saying within 30 days before?

18 Mar 2002 : Column 187

Lord McCarthy: Before, yes.

Lord Sainsbury of Turville: What I can say is that all draft regulations are published, or put on the website, for everyone to see. I cannot give an assurance on the timing of that at this point. There is a minimum of six weeks for doing that.

Lord McCarthy: Therefore, six weeks before Parliament is asked to pass the regulations, they will all be put on the web?

Lord Sainsbury of Turville: I believe it is actually 12 weeks, but I can give the assurance that it will be six.

Lord McCarthy: So 12 weeks before Parliament is asked to pass them?

Lord Sainsbury of Turville: I believe it is 12 weeks, but I can certainly give the assurance on six.

Lord Gladwin of Clee: I thought that we had dealt with that issue some time ago—at our previous sitting—when there was an exchange between myself and the noble Lord, Lord Bassam. I do not have Hansard to hand but my perception is that when I asked him whether they be published, he said, "Yes, like we published Routes to Resolution". I said, "So it is 'Son of Routes to Resolution'," and he agreed.

There is some discussion about the way in which that document was published. Many people do not have access to the Web. My understanding was that the draft regulations would be published in the way that I understand the phrase, "being published". That does not involve sitting at a computer; I want it in my hand. Am I going to get it at least six weeks—maybe more—before they become law? I think I am getting a yes.

Lord Sainsbury of Turville: The answer is yes.

Baroness Miller of Hendon: I beg the pardon of the noble Lord, Lord Wedderburn or Lord McCarthy, but I came in during the middle of that last amendment and I missed something. When I first came in they were talking continually about top people and they subsequently talked about grand bodies. Could I confirm that the top people they were referring to meant the grand bodies that were going to have sight of these things?

Lord Wedderburn of Charlton: The noble Baroness is very kind in asking us to repeat that point. She should never miss a moment of this exciting Grand Committee; one never knows what she might miss. The top people were mentioned in the Minister's explanation. We have passed a long way beyond that now, as the noble Baroness will appreciate. We now know that the drafts of regulations are going to be published for the populous at large to read weeks before they are put before Parliament—or at any rate weeks before they are made effective in any way.

I have to say—the comments of my noble friend Lord McCarthy were very important in this respect—that that is not a normal practice. I have tried to find

18 Mar 2002 : Column 188

out on occasion; my noble friend, Lady Turner, mentioned social security. It is sometimes extremely difficult to find out what the department or the ministry intends to do with regulations that suddenly appear in a proposed form. This is particularly important because these regulations—entered into through the Bill—involve the contracts of employment of everyone in the land. That is why the drafts should be published, and I am very glad that we have assurance that it will. No doubt my noble friend will wish to withdraw the amendment in the light of the discussion that has taken part.

Lord McCarthy: Of course I shall read Hansard very carefully to see if all those wonderful things were really said. If there is any doubt about the matter I shall come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Statutory dispute resolution procedures]:

Baroness Miller of Hendon moved Amendment No. 95:

    Page 35, line 25, at end insert—

"(4) A minor and inconsequential breach by an employer or employee of the requirements of Schedule 2 shall not result in his suffering any discrimination in any proceedings before an employment tribunal and the employer shall not be deemed to have wrongly dismissed the employee."

The noble Baroness said: One of the many contributions made by English lawyers to jurisprudence was the system we call "equity", which more or less began to overcome the rules of the common law courts. They imposed a system of strict pleading whereby a perfectly valid case could be dismissed simply on account of some technical, and sometimes quite a minor, error in drafting the court documents.

The amendment proposes to introduce the centuries-old concept created by the courts of equity into the rules of the employment tribunals. I hope that the Minister—I am not sure which Minister will respond—will share my very laudable ambition.

Schedule 2 has introduced very extensive and complicated procedures for dispute resolution and for dealing with dismissal cases. The fact is, however, that in many cases the litigants on both sides will be unrepresented by lawyers, by a union or by another expert advisor, at least in the early stages of the dispute. It is conceivable—indeed, it is highly likely—that some technical error might occur in the processes laid down by the schedule. It would be an injustice if an otherwise valid claim or defence should be arbitrarily dismissed because of some minor technicality. The amendment is intended to do no more than to prevent that kind of injustice.

The amendment makes it absolutely clear that it is only minor and inconsequential breaches of the requirements of the schedule that will qualify to be overlooked with the case proceeding on its merits. The old established legal maxim is "De minimis non curat lex", which means that the law does not concern itself

18 Mar 2002 : Column 189

with trifles. This principle is used by the civil courts, particularly the appellate court, to justify the refusal to countenance matters of small import.

There is no reason why the same principle, relying on the tribunal's common sense, should not be used to ensure that cases are not dismissed due to some pettifogging technicality, thus denying one of the parties justice. I beg to move.

The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton): The amendment, which was clearly set out by the noble Baroness, seeks to ensure that neither the employer nor the employee will suffer detriment where failure to comply with the procedures is "minor and inconsequential". The amendment was put in a very legalistic way, if I may say so.

However, as presently drafted, the procedures are clear and uncluttered. Each action within them is simple to understand and apply. There are no convoluted twists and turns. We have resisted any attempts to introduce unnecessary intricacy. At Second Reading, the procedures were described as "skeletal". Therefore, I feel there is only limited scope for "minor and inconsequential" breaches to occur. The problem that the amendment seeks to address is more apparent than real.

The statutory procedures are drafted as a series of concrete actions. So far as possible, we have sought to avoid introducing anything that has a qualitative element into the procedures. By doing so, we have reduced the scope for uncertainty or disputes to arise. Parties should know where they stand.

The amendment would potentially confuse the picture, providing special treatment for "minor and inconsequential" breaches. It would lead to an issue arising as to whether or not a breach was "minor and inconsequential". What one party might think was "minor and inconsequential" could be a matter of considerable significance to somebody else. We are doubtful, therefore, whether the noble Baroness's proposal would improve the functioning of dispute resolution procedures or the operation of the proposals made. It would lead to uncertainty and dispute.

That said, we want to remove so far as possible any remaining scope for insignificant and inconsequential breaches to arise. Later, we are due to debate Amendment No. 118, which in our view identifies an area in which the text may inadvertently provide scope for such minor breaches to occur.

I should also point out that there are important regulation-making powers in Clauses 30, 31 and 33. This gives us scope to address some of the practical problems that may arise when requiring people to follow the statutory procedures to the letter. There will be occasions on which it will be simply impracticable to follow the procedures; that is a different issue from the "minor and inconsequential" issue that the noble Baroness raised. The impracticability situations arise, for example, where individuals may be hospitalised or seriously ill. The regulations will define the

18 Mar 2002 : Column 190

circumstances in which employers or employees would not be required to follow the relevant procedure in each and every detail. In light of what I have said, I hope the noble Baroness will feel able to withdraw her amendment.

Next Section Back to Table of Contents Lords Hansard Home Page