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Lord Wedderburn of Charlton: I am grateful that my noble friend is prepared to consider things, but have I understood him correctly? I wanted to ask about the previous remark about not including all cases of sexual or racial discrimination or harassment, so that when an employee—a man or a woman—is being sexually discriminated against, and more particularly where they are being sexually harassed at the place of work, they must write the letter and then wait 28 days and go on being harassed before they can get near a tribunal or have any sort of legal redress. Have I understood that correctly—they must wait and be harassed?
Lord McIntosh of Haringey: There could be other reasons in the same case which would lead to exemption from the admissibility provisions.
Lord McCarthy: One sees how deep the hole is beginning to look. The more one tries to specify the boundaries of these things, the worse it becomes. We are now told—this is not what the Minister said in Committee—it is not violence, it is not intimidation, it is not bullying, it is not sexual or racial discrimination that is being inappropriately excluded; it is some cases. What cases, and for God's sake, why? As my noble friend says, it could be the little cases which one can let go forward, but the serious cases one will keep. But how the hell is one going to distinguish one from the other?
There are all the anomalies. We have picked up the sex and race discrimination issue. We have not found disability. But by what logic do you leave disability in and take at least some cases of sex and race discrimination out? The noble Lord mentioned interim relief. That is another one—I will write that down. Every time a Minister gets up he mentions one, but, of course, he always leaves one out.
I am all for meeting people, talking to people and trying to draw up a list, but I beg the Government to try to find out the principles—I know that they do not like principles—behind which they are putting things in and taking things out, and the principles behind which they are saying that some of these matters apply in all cases, some of them apply in only half of cases and some are hardly included at all. We have had nothing from the Government on any kind of rationale of what is admissible and inadmissible. I do not know whether or not the Minister wants to reply, but I give him the opportunity.
Lord McIntosh of Haringey: One could explore the possibility of looking for principles, but looking at this list and looking at the things which the Government intend to put into the regulation, I am not sure that I can see a principle behind them.
Lord McCarthy: Here we have a Bill with no principles. The Minister said that, not me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 157A not moved.]
6.45 p.m.
Lord Wedderburn of Charlton moved Amendment No. 158:
- Page 38, line 17, leave out paragraph (a).
The noble Lord said: With Amendment No. 158, I apprehend that I would be right to speak to Amendments Nos. 159 and 160. There is a sense in which Amendments Nos. 159 and 160 have become even more important in the course of our debates today than Amendment No. 158. Perhaps I may explain.
Amendment No. 158 would leave out two lines of the Clause 33(7), which allows the Secretary of State to make provision for the application of the procedures. There is a sense in which that was meant to raise some of the points which have already been canvassed in our debates. Therefore, I concentrate on Amendments
Nos. 159 and 160, which will be a saving of time, but on which I can therefore spend perhaps a little longer than might be expected. These amendments raise questions of human rights and questions of ministerial power.The Bill at the moment states that the Secretary of State can make provision about what constitutes compliance with the statutory procedures. It also states that the Secretary of State can make regulations to,
- "make provision about circumstances in which a person is to be treated as having complied with",
Those regulations, as I read it, will decide matters of law as applied to particular facts. Normally, when one sees in an Act of Parliament a requirement that a person should complete a procedure, the interpretation of whether that person has completed a procedure would be a matter for the courts, or here, perhaps, for the tribunals. It is a judicial matter of applying that formula in the Act of Parliament to the facts.
A Henry VIII clause properly so called—and perhaps we have previously misused the phrase—attempts to take out of the purview and jurisdiction of the court that decision as to the application of the law in the Act of Parliament and give it to a Minister. One thought that one had seen the end of crude Henry VIII clauses. Paragraphs (b) and (c) of Clause 33(7) are crude Henry VIII clauses. They purport to give to the Minister the power to decide whether the law has been complied with or not. As such, we object to them, and we believe, too, that they are highly suspect if one applies Article 6 of the European Convention on Human Rights, now incorporated by the Human Rights Act.
Perhaps I may explain. To say that the Secretary of State can decide what is compliance is, in our submission, improper under the most elementary principles of the rule of law. Our amendment does not attempt to exclude the Secretary of State entirely. Our amendment says that the Secretary of State should not have the power to decide what is a completion in a particular case, or set of cases, but should have the right—since the Government wish to interpose the Secretary of State's view on these matters—to issue a code of practice for guidance on the matter. That, as I understand it, is unexceptionable. Tribunals can look at the code of practice and take account of it in deciding the judicial question of whether or not the Act has been contravened. In both cases, and in both paragraphs, we propose that the power to decide this judicial matter should not rest with the executive but that a power to give guidance—if that is what the Government want—should be introduced instead.
The second reason why these paragraphs are improper is that they offend the principles in Article 6 of the European Convention on Human Rights and, when one looks at the proceedings of the Joint Committee of your Lordships' House and the other place on the Bill in regard to human rights, one finds exactly why.
On 24th January 2002, the Secretary of State sent a letter to the Joint Committee. In it she set out, quite correctly in my submission, the fact that Article 6 of the convention was relevant. The article states that:
- "In the determination of civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
- "The express rights given by Article 6(1) are: the right to a fair hearing, the right to a hearing within a reasonable time, the right to an independent and impartial tribunal established by law, the right to a public hearing (subject to certain qualifications) and the right to public pronouncement of judgement.
- In addition, the Strasbourg court has interpreted Article 6(1) as giving the following implied rights: the right of access to the courts"—
- "the right to be present at an adversarial hearing, the right to equality of arms; the right to fair representation of the evidence; the right to cross-examine witnesses and the right to a reasoned judgement".
It was on that basis that the Joint Committee drew up its view that Clause 33, on its face, may well not offend Article 6. My noble friend Lord McCarthy has already quoted paragraph 24 of its report, which brings the following to the attention of Members of the Committee. I note particularly the formula which the Joint Committee used at paragraph 25:
- "We draw these matters to the attention of each House",
Perhaps I may read again what the Joint Committee on Human Rights says in paragraph 24,
- "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 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".
In what it decided, the Joint Committee was able to address the clause as it stands on its face, and it is quite true that, perhaps rather squeakily, the Government succeeded in persuading it that the clause on its face possibly complies with Article 6. Members of the Committee will have noticed from the passage which I read that, naturally, the Joint Committee had to leave the question of proportionality because it could not possibly address that unless it had a much bigger debate about the exact nature of the problem which Clause 33 is meant to address. At any rate, the Joint Committee report does not discuss in detail the question of proportionality, to which I wish to turn.
The question of proportionality is fundamental to the application of European law—and now of British or United Kingdom law—in the question of Article 6 and proper process before courts and tribunals. It was recently proved in the case of Fogarty v The United Kingdom, [2002] IRLR 148, in a judgment by majority of the European Court of Human Rights in Strasbourg.
The question arose as to whether a young woman who had been employed in various jobs by the United States Embassy could sue the Embassy on grounds of sex discrimination because her application for a job had been refused following a long and complex relationship with the Embassy, which had been her employer. Although at first the Embassy defended the claim, it ultimately entered a plea that, as an emanation of a sovereign, and therefore being immune to process, it could not be sued in the British courts or tribunals. Finally, the court in Strasbourg accepted that claim. However, it is relevant to this case because the court also said, on page 14 of the report:
- "The right of access to court"—
- "is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 para. 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved".
- "The court must next assess whether the restriction was proportionate to the aim pursued".
- "The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account".
Therefore, here the issue arises not of sovereign immunity but of whether the prohibitions and limitations upon access to justice are proportional. One can only judge—the committee did not go into this—whether they are proportional if one asks what
is the mischief to be avoided or what is the problem to be tackled. The Secretary of State conveniently set out precisely and exactly the problem which she said Clauses 31 and 33 sought to tackle. In her letter of 24th January 2002, which is an appendix to the Joint Committee's report, she says: "You"—that is, the Committee—
- "asked for an explanation of the considerations underlying the policies on admissibility of claims and adjustments to awards by employment tribunals. These are jointly the main enforcement mechanism for the use of the statutory dispute resolution procedures the Bill would require. The mischief addressed in clauses 31-33 is an over-ready resort to employment tribunals. According to a 1998 survey of applications, in 37 per cent of claims no attempt had been made in the workplace to resolve the problem before the application. In 62 per cent of cases the parties did not meet to discuss it".
At Second Reading, my noble friend Lord McCarthy and I advanced a case, whose essence was that the research done for the Government—which ultimately found the light of day just before we could discuss the Bill and long after the other place had had an opportunity to discuss it—did not sustain the figures. Moreover, they were not a good basis for any notion of an over-ready resort to applications to the employment tribunals; they did not sustain the CBI's complaint of a compensation culture; and they were in fact no basis upon which legislation could be based.
We did that at columns—I refer Members of the Commitee to them again—1370 to 1374, and columns 1387 to 1389. Indeed, we thought we had made progress. This was only two days after the Secretary of State had written to the Joint Committee on Human Rights. On 26th February—two days after her letter—my noble friend Lord McIntosh of Haringey made a relevant statement. I shall quote the whole sentence so that he does not think I in anyway misrepresent his comments. He said:
- "My Lords, I challenge the view that it is a central reason for stopping the applications".
I must pause to say that I had just put to him a question whether he still thought that, as I put it, three in five of the applications to tribunals come from applicants who have not attempted to resolve the problem directly. That was the interpretation the Government had put on that in their consultative document. He went on,
- "As regards the word 'attempted', I cannot tell from the wording of the survey whether such attempts took place or not. I imagine that in a large number of cases if a meeting had been attempted it would have been achieved, or certainly if written communication had been attempted it would have been achieved. I do not believe that significant numbers are involved in that regard. This is a distinction without a difference. Frankly, the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms and I do not think we should spend any more time on it".—[Official Report, 26/2/02; col. 1404.]
I would not spend any time on it; the survey is not worth it. However, the Secretary of State relied on it, and relied on its misinterpretation in the case that she
put to the Joint Committee on Human Rights. Therefore, the proportionality that the committee, alas, had to consider—if it did consider it; it does not expand upon it—would be a proportionality against a totally false case—one that had never properly been discussed in Parliament, one that had never been published and one that had not been debated until two days after her letter. Yet, so far as I know, no communication was sent to the Joint Committee on Human Rights, although, two days later, the Minister stated clearly,
- "the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms".
In that event, doubts arise in view of the real facts, the research of Dr Burgess and his colleagues as to the real reason for the inexorable rise of employment tribunal applications since 1988 and the real research that has been done. I say that with respect to those who did the research of SETA and the awareness study, in a sense it is not their fault that their results have been misused by the Government—they have been flagrantly misused. It states on page 24 of SETA,
- "these figures must be interpreted with care".
- "this survey has been taken as far as it can be taken. It has little significance in policy making terms".
Therefore, the issue of proportionality remains outstanding. It has not been addressed by the Government because they have not addressed reality in constructing Clause 33. That led them, in their desperation to stop 30,000 to 40,000 applications to tribunals, to give to the Secretary of State power to decide judicial issues, such as what constitutes compliance with the law. I beg to move.
7 p.m.
Lord McCarthy: I want to make two points in support of my noble friend, who has gone back—in this amendment he must go back—to the SETA survey. I am as sick of the SETA survey as I am sure the Government are. My first point is about that. My second point relates to paragraph 24 of the report by the Joint Committee on Human Rights. This must be the third time it has been quoted this afternoon.
On the SETA survey, the central point that I find bizarre is that even today we have never been told the actual questions posed. I know that the noble Lord in civilian life is a survey man, and I know what he would say to somebody who told him of the conclusions that had been drawn from a survey but they did not tell him the actual question posed. One does not know what to make of it. If one does not see the question, one cannot evaluate it or say, "What a silly question" or "That is a good question". One has not got off the ground. We have not yet been told. We have had three successive versions but you will not find them in SETA and you will not find the question that was posed in SETA. No serious social scientist would take any notice of a survey of that kind.
My second point relates to paragraph 24 of the report. This is the third time we have read it out. I ask the Minister a simple question. He knows much more about the mores of this House and Parliament than I do. What does paragraph 25 of the report mean? What does it commit the Government to doing? It states:
- "We draw these matters to the attention of each House".
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