| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Wedderburn of Charlton: I am disappointed by the reply of my noble and learned friend. The study of the Bill is becoming more and more a study in petrography—the study of different sorts of stone. The Government have an infinite set of stonework in the Bill and it is not to be chipped; or only very, very rarely.
Lord McIntosh of Haringey: Petrology.
Lord Wedderburn of Charlton: The word is "petrology", according to my noble friend. I looked it up actually; "petrography" is perfectly good but "petrology" if he wishes. He acknowledges petrology. We will see how petrous the Bill is. I urge the Government to reconsider particular aspects of their approach.
First, my noble and learned friend says, "Avoid legalistic wording". We should avoid legalistic wording when putting something in the place of work, but we are passing an Act of Parliament—we are passing a law—and I want to know what it means. If I were an employer, I might say, "I have to do this in writing. Does that include e-mail?". Somebody will say, "No, of course it doesn't. That is just a lot of noughts and ones—a lot of electric impulses. If you print it out it may be in writing but otherwise it will not be". Then someone will say, "I think that an Act of 1978 is relevant". He may have done a quick course for which these employment advisors charge so much.
I am disappointed by the response of my noble and learned friend, because I thought that I had it wrong; I thought that there were other Acts that defined "in writing" and "electronic communications", but his reply seemed to suggest that I have it right. Why not say in the Bill what you mean by "writing"? They want to get rid of hearings in the employment tribunals and the Court of Appeal. Why not get rid of even the possibility of an argument about e-mail by saying what you mean by "writing"? We might do that in the regulations but, it seems, not necessarily through this amendment.
It would be helpful if the Government could give us some indication of what they mean by "writing" rather than wait for their regulations. These regulations will be contained in books and loose-leaf folders and they will come in their dozens. What does he think employers in their place of work will make of them? Does he think that that will make it easier for them? Of course not. The Government should say what they mean about matters of principle and fundamental
mechanisms in the Bill. Detail, of course, and adjustments will come in regulations. There are plenty of powers for that. But it really is not good enough just to say that the matter might be legalistic. My noble and learned friend and I know what "legalistic" really means—it is a pejorative form for bad law. If I had suggested bad law, I would not mind, but he seemed to suggest that this is good law that I am suggesting. So let us have no more nonsense about legalistic wording. Let us have the Bill saying what it means and then we can make progress.On the second point, the Minister says I am introducing a rule of thumb and that this might lead to advantages for liars and then he said that would bring the whole schedule into disrepute. With the greatest respect to him, that misrepresents the amendment. The amendment does not produce a complete rule of thumb; it introduces a presumption. There is a big difference between a substantive rule of thumb and a presumption. The presumption is that when somebody says, "I have sent a copy", and it should read, "I have sent the document or a copy", that stands until the contrary is proved. What is wrong with that? There is nothing there to bring the schedule into disrepute. The schedule is in enough disrepute as it is. We have shown that this afternoon. This will help the schedule to say what it means and help the schedule to be applied in a sensible sort of way at the place of work which is where it is going to take effect as obligatory terms of the contract of employment.
Thirdly, I say with great respect to my noble and learned friend that I do hope he will reconsider this. The great problem with the third point is that refusing to be absolutely clear about what ACAS says on this does ACAS a disservice. Normally, of course, the matter can be left to a tribunal, especially when it is addressed by representatives of parties who may be considered competent to have looked at the codes of practice of ACAS and to take account, as invited, of relevant codes of practice. We are not concerned with irrelevant codes of practice; this amendment refers to "relevant code of practice". But, in this case, on the assumption that we are left with a Schedule 2 something like it now stands, there really must be an obligation to take judicial notice of codes of practice from ACAS.
I am assuming that as almost none of our previous amendments have been accepted, I am therefore entitled to proceed on the basis that Schedule 2 will look something like it is at the moment. In that circumstance with the sort of schedule that is put before us—this unfair and improper schedule of obligatory procedures—there at least the word of ACAS must be listened to by the tribunal. I am utterly astonished that my noble and learned friend should suggest that merely to leave the law as it is is quite adequate without further ado.
In my submission Amendment No. 124 touches upon three matters of the highest importance to the actual administration of the Government's own chosen mechanisms which, at the moment, are obscure. We do not know what is meant by "writing".
We do not know what will happen if someone says he has sent a copy, as he is obliged to do under the schedule, and somebody else says he did not send it. We do not even know what "sent" means. We know that a tribunal will not be obliged in law to take account of the relevant codes of practice unless it wants to, as invited by the parties.I ask the Minister: is he able to say nothing more about this? Will he not take away the matter? The first matter he is taking away, as I understand it. Something, we do not know what, is going to be said about it in a regulation. The second matter he, with great respect, derided, but by misrepresenting it. It is not a rule of thumb; it is a presumption. Will he not take away that, at least, and look at it? And will he not take away the point about ACAS? I appreciate that ACAS is an independent entity. I hope that the Government will be reminded of that in the near future.
As the Minister made perfectly clear in another place, ACAS will be asked to rewrite its codes of practice relevant to the Bill when it becomes an Act. There will be a very strong argument that ACAS must
not have a code of practice that runs counter to the statutory law. If that is so, and ACAS is going to be put under such pressure to rewrite its codes of practice, surely it must be right that a tribunal and appellate court should be under a duty to take account of whatever code of practice it is still left for ACAS to be able to put before the administration of justice.I hope my noble and learned friend will be able to say that he will look again at those points in Amendment No. 124 and that the Government will come forward with a proposal. The problem with Grand Committee is that one always have to end up with the same formula, and of course I will end up with it now.
As somebody has said "no"—and especially as it is the Government who have said "no"—I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton: I believe that this may be a convenient moment for the Committee to adjourn until tomorrow at four o'clock.
- The Committee adjourned at half past seven o'clock.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |