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- House adjourned at twenty-eight minutes before one o'clock.
Official Report of the Grand Committee on the
Employment Bill
Monday, 25th March 2002.
The Committee met at half-past three of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]:
The Deputy Chairman of Committees: Before the Committee begins, it has been agreed through the usual channels that as soon as the noble Lord, Lord Goodhart, rises to speak in the Chamber, the Committee will adjourn, because the noble Lord, Lord Sainsbury, and the noble Baroness, Lady Miller, have to take part in the Consignia Statement. The Committee will reconvene as soon as the first Statement is finished. I would remind Members of the Committee that there will be no Divisions in the Grand Committee; noble Lords will speak standing.
Clause 33 [Complaints about grievances]:
Lord McCarthy moved Amendment No. 147:
- Page 37, line 39, leave out "28" and insert "14"
The noble Lord said: In moving Amendment No. 147, I shall speak also to Amendments Nos. 148 and 149. This brings us to Clause 33 which is, without doubt, the most controversial clause in the Bill. The CBI favoured it greatly and in fact it would be no exaggeration to say that the CBI sees it as the main force which it hopes will reduce the hearings by some 30,000 to 40,000. It urges the Government not to weaken as regards excluding claims. If Clause 33 does not do its job, the CBI says that it will come back and ask for it in another form to make it more effective in excluding the total number of claims. From that point of view, this is a very important clause for employers.
On the other hand, if we go to the other extreme, Judge Prophet regards it as a degrading clause which blatantly disregards the legal entitlements of the applicant. This is very controversial. The Law Society thinks that the Government should take it away and tear it up. It believes that Clause 31 would do the job of Clause 33 if the tribunals were given a certain amount of discretion. It says that it is misconceived. Quite recently—although I do not think we have not mentioned it in our debate so far in this Chamber—the Joint Committee on Human Rights looked at this clause. They did so, largely because they were asked to by Judge Prophet. He wrote to them and said, as I have said, that it was a terrible Bill. This committee of both Houses looked at it.
I would like to ask the Government a question about what they said before I come to our amendment, which is related to that. The Joint Committee said at page 9 of its report that the power that was given to the Secretary of State in Clause 33 of the Bill was extremely wide. They were concerned about the extremely wide powers
given to the Secretary of State in this clause and so they felt they should ask the Secretary of State several questions about it, and in particular whether it was compatible with Article 6.1 of the European Convention on Human Rights. Before they could get replies, the Government came in, and I would like to ask whether that was the result of what the Government had felt. It may be that the Committee might conclude that. The Government came in in another place and suddenly produced a completely new version of Clause 33. The committee of both Houses looked at this clause and thought it was a great improvement but did not think it was satisfactory. It said, and I quote from page 11 of its report:
- "Nevertheless, we regret that the safeguards for fairness contemplated by the new clause 33(5)"—
- "would be left to be provided in subordinate legislation. It makes it difficult for Parliament as a whole, and for this Committee in particular, to form a view about the compatibility of proposed legislation with Convention rights when important safeguards are not included on the face of the Bill".
- "If it will be possible to draft regulations specifying with sufficient clarity the circumstances in which a tribunal would be able to entertain a claim notwithstanding the late completion of the statutory dispute resolution procedures, we do not see why similarly drafted provisions could not be included on the face of the Bill".
- "This would both further enhance legal certainty, and facilitate the task of Parliament in satisfying itself, where necessary, as to the proportionality of the restriction of Convention rights".
- "We draw these matters to the attention of each House".
I want to draw these matters to the attention of the Government. I am asking whether the Government have considered paragraph 24 of the report of the Joint Committee on Human Rights and what their answer is. Is the Joint Committee not right? If it were possible to set out draft regulations with sufficient clarity when they were produced as regulations, is it not clear that they could be put on the face of the Bill? Is it not right that that would further enhance legal certainty and facilitate the task of Parliament? Now that we have reached Clause 33, I believe that we are entitled to ask the Government what they feel about this important suggestion.
I turn to my amendment, which seeks to modify the effects of Clause 33 as it stands. It is an attempt to limit the wideness or generality of the clause and access the barriers in it. Amendment No. 149 concerns the role of tribunals. We are saying that:
- "Where an employment tribunal considers it to be just and equitable, the tribunal [should be able to] accept a complaint from an employee even though it fails to satisfy the conditions stated in subsections (2) and (3)"—
- "and in such a case the chairman shall notify the applicant accordingly".
Amendments Nos. 147 and 148 deal with the delays which are imposed upon the clause. I have looked very carefully—I am sure that my noble friend Lord Wedderburn has looked even more carefully—but I have not found in any of the statements made in another place where the Government obtain their delaying power. It is possible to argue that there is a case for writing or asking for a letter and saying that, unless one has a letter, one cannot go forward. However, if the individual applicant has met that fairly small demand, why should there be a 28-day pause? That has never really been explained. Why should the delay not be 21 or 14 days? That is what we are suggesting because we are trying to be modest.
As regards Amendment No. 148, why is a person allowed only one month in addition to the usual originating period to complete the procedures? Why is the period not two months? Where do the Government obtain these figures? If we take the case where an applicant has done everything that he is expected to do and where the employer has done everything that he is expected to do but they have not reached a settlement, they cannot get together. No one appears to be doing anything at this point. It is not possible to involve ACAS. We have tabled a subsequent amendment which brings ACAS into this dead period, but the Government want a 28-day period during which nothing is done. Of course, one might say that in that 28-day period the parties may get together, but they may not. Where does the 28-day period come from? What is the explanation for the delay?
If one took a cynical approach one would say that, faced with a delay of 28 days—maybe the CBI takes this view—a significant number of workers will just get fed up, or they will be out of a job or they will say, "Oh, I can't be bothered with that for 28 days—nothing has happened". We should remember that that does not mean that at the end of 28 days you get to a tribunal. As I have said several times in Committee, no one knows how long it takes to get to a tribunal; that is kept very quiet.
We should ask the critical question from the moment when domestic settlement fails at stage 1 or from the moment when ACAS conciliation fails at stage 2; that is, how long does it take for the average case to get a hearing? Nobody knows; they do not tell you. If you ask they say, "It's very varied, very queer and very strange. We wouldn't know if we told you. You wouldn't be better off". In the end they say, "We don't collect it anyway".
We only know that the process is not quick. We only know by hearsay—by apocrypha—that it takes quite a long time in the end to get to a tribunal. Why, therefore, do we have to add a statutory, fixed and rigid 28 days? That is the question that is raised by the amendment.
I hope that the Government will consider the amendment and that they will try, in response to one of our many amendments to Clause 33, to come a little closer to the spirit and intention of paragraph 24 of the report. I beg to move.
Lord Wedderburn of Charlton: I follow my noble friend to say, first, how important the clause is generally. It is the crux of the apparatus of this unfair part of the Bill. Secondly, I have studied, as my noble friend suggested, every line of debate in Committee in another place and all the documents that the Government have produced. I cannot find, as he says, any explanation for the one-month zero delay.
In another place, the Minister, Alan Johnson, said that the Government were still thinking about the matter and that even when the worker had completed the necessary first step, they might require a four-week delay. He did not say for what. Perhaps he was thinking hopefully for a settlement of the case, because the object of this part of the Bill is to stop cases getting to tribunals. However, as my noble friend said, nothing has been vouchsafed as to why this is the right period. Have the Government done any research? Is there an unpublished research document perhaps, which shows that in 24 days you get more settlements than in 29? What have the Government done about this? Have they some figures that we have not seen?
I believe that our amendment has almost as little justification as the Bill. We have chosen 14 days not because we know that there are more settlements in the first 13 than in the first 27 but to ask the Government about the rationale of the figure. Or have they simply clutched a figure out of the air in agreement with the CBI? Is that what the CBI wanted? Is that what it asked for? I ask the Minister seriously, is that what the CBI asked for? Perhaps he will tell us. If it asked for that, did it advance some reasons of which we do not know?
I strongly support the amendment. At least a reduction in the period will reduce the period in which a worker with a good case, who has completed the step that the Government demand of him or her, will be stopped from entering access to justice—stopped from entering the door of the tribunal—which is the only place where his rights can be enforced.
3.45 p.m.
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