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Lord Wedderburn of Charlton: With great respect to my noble and learned friend, the noble Lord, Lord Razzall, does not have to deal with that because it is not, in my submission, the case—I hope that my noble and learned friend will look at this very carefully—that the abolition of the modified procedures logically or necessarily entails the proposition that no instant dismissal can never be fair. The two propositions do not flow one from the other. At least, if it is said that that would be so in the context of the government schedule, it would be so only because step 2 in the standard procedure of the disciplinary procedure is that no action is to be taken except by way of suspension—suspension is the only case that is mentioned—before the meeting.

Lord Falconer of Thoroton: No instant dismissal.

Lord Wedderburn of Charlton: I shall read the passage for my noble and learned friend. In the disciplinary procedure that they constructed, it states,

"the meeting must take place before action is taken, except in the case"—

Lord Falconer of Thoroton: Exactly.

Lord Wedderburn of Charlton: But that is their construction. They cannot put a proposition in the Bill and then tell us that the logic of our propositions must be confined—must be within the propositions they have constructed. That is not the way that argument reasonably takes place. My noble and learned friend is displeased with that, I see, because, of course, they cannot think of any other reality, except what they have put in the Bill.

Let me try again. I assure my noble and learned friend that our amendments—the amendment of the noble Lord, Lord Razzall, does not involve a different case—have been constructed with very great care, both as to substance and to form. If we had meant to move an amendment that said that instant dismissal should always be unlawful, we would have done so. We have not done so, and it is not implied in the proposition that the modified procedures are some kind of cover or curious and indirect way of moving such an amendment.

Indeed, my noble and learned friend said that the modified procedure on grievances deals only with former employees. Well, it does not say so.

Lord Falconer of Thoroton: The regulations say that.

Lord Wedderburn of Charlton: Oh, so we now find that out from the regulations. For goodness' sake! We

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are fed up with this business of knowing only when we get to the regulations—we want to know from the Bill what it means. If "employee" on page 65, line 32, means "former employee", why should Parliament have to wait for a regulation to know what it is putting on the statute book? It really is intolerable that the Government should put Parliament in this position and then say, "'employee', in this particular line, means only 'former employee', but we will not put that in our Bill. We'll only tell you that when some regulation is passed at some time". What kind of Tudor state of mind have the Government got into as regards secondary legislation? That really will not do.

Those were the first and second of my four comments on what my noble and learned friend said. What he said earlier was that Schedule 2— the modified procedures—underpins reasonable procedures. In a sense, that is our objection. It is about underpinning reasonable procedures with unreasonable procedures and making them the minimum. We do not think that the minimum should involve unfair and unreasonable procedures. The core of our case is that those provisions are unfair and unreasonable. They do not even mean what they say, because "employee" means not "employee" but "former employee". They are obscure, they are uncertain and they are a disgrace.

I trust the tribunals and the courts in this regard; contrary to what some people say about me, I should trust an appellate court to do its best not to apply what the modified procedures insist are the implied terms of every contract of employment in the land.

I do not know when my noble and learned friend first came across this matter—he has had so many other things to deal with. I have a great deal of sympathy with him. However, he is quite capable of having seen the Bill in its formative days—in those days long ago when the CBI insisted that we must cut tribunal applications by 40,000. The Government then conceded that and now try to forget that they ever said it. All of this is all part of that. I do not believe that a court would think that it was reasonable that Parliament was made to pass a Bill through the apparatus that the Government control, in relation to which "employee" really means "former employee" and reasonable procedures were to be underpinned by unreasonable procedures.

I turn to increasing workers' rights in a formalistic sense. Of course, to imply any right to minimum procedures is a change in workers' rights. But if you change workers' rights with the right to have procedures completed, and those procedures are unfair and unreasonable, workers will not thank you for increasing their rights; nor will their unions be happy. If you want people to stop work instead of taking cases to tribunals, then go on with the modified procedure because that is what will happen.

People will not suffer this type of treatment at work. This is 2002. We shall be discussing previous cases in a moment. It really will not do to put on the statute book modified procedures of this kind. My noble friend Lord McCarthy explained why they are worse than

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minimal, and I plead with the Minister to take back to the department the proposition that the modified procedure should be reconsidered. If I do not misremember, when the Committee last sat, he said that Schedule 2 would be reconsidered. Would this not be a good point to reconsider?

Lord McCarthy: Perhaps I may say what I believe the Government are saying so that we may clarify the position. The other day I was forced to quote Shakespeare. Now I feel like quoting the Bible: "Forgive them, Father, for they know not what they do". On this occasion I do not believe that they know what they are doing.

The Minister said—I believe that I quote him correctly—that this is a suitable minimum procedure. A suitable minimum procedure must be an advance in some sense. It must be an attempt to improve something, not an attempt to go backwards. It is a suitable minimum procedure, just as we have a suitable minimum wage. That is what is claimed for this part of the Bill.

What does it allow the Government to do? It allows them to provide the employer with the right of instant dismissal or instant dismissal of a grievance; for example, a grievance concerning sex discrimination, because that is what that would be—the worker would be complaining about sex discrimination—or concerning race discrimination. Therefore, employees may well find themselves acting under the terms of the suitable minimum procedure whereby they would face a decision by the employer which the employer would not have to explain. No reason or explanation would need to be given and, unless it was a dismissal, and it was only a case of sex discrimination, there would be no appeal. That is what the suitable minimum procedure provides and we are told that it is an advance.

Let us suppose that an employer were to do that, or let us suppose that an employer, as often happens, does something and then someone complains, sends for a lawyer and says, "This is what I did. Tell me whether it was lawful". Let us suppose that he had a good solicitor who told him, "I don't think you would have much chance if you got to a tribunal, my dear chap, because they would say that this was not a reasonable response. You did not have an investigation; you did not do this; and you have never allowed any appeal. That is not proper". What would the employer say? Apparently, the Government believe that the employer would instantly say, "Oh I see. I am terribly sorry. Let's reverse engines". That is not what many employers do.

People who work on tribunals will tell you that there are some very distinguished, important companies which systematically break the law, systematically go to tribunals and systematically pay because they do not want the principles of justice to become the principles on which they treat their employees. I refer to very distinguished companies—public sector companies. What will they do when their lawyers say to them, "No, I am afraid that does not mean that you can ignore the ACAS code, sir. It does not mean to say

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you can take no notice because the ACAS code will still be taken into account if you get to a tribunal"? The employer will say, "I'll give the bond"—I return to Shakespeare again—"I'll give the bond and nothing but the bond. They are not getting any more out of me". That is what this Government—a Labour Government—put forward as the suitable minimum procedure. They really should think again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 and 107 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 108:

Page 64, line 32, leave out "misconduct" and insert "fundamental breach of his obligations".

The noble Lord said: Amendment No. 108 is somewhat technical. It centres on the word "misconduct". There has been a lot of debate in which the word "misconduct" has been used and it is used in the Schedule 2 minimum procedures. As those are suitable procedures, it seems, for imposition into every contract of employment, it is very important to know what they mean.

I appreciate that they cannot be known in full until we see the regulations, to which we have objected. My noble and learned friend will tell me whether I am wrong, but I apprehend that the regulations are unlikely to define "misconduct" further. We are then left with "misconduct" in the Bill. This amendment suggests that the word "misconduct" is unsuitable to have in the Bill because of the difficulty of knowing what it means.

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