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Lord McIntosh of Haringey: No point was made about Amendment No. 158, and therefore I will make no point in response.
On Amendments Nos. 159 and 160, there is one matter which I am extremely reluctant to raise again for the reason I gave at Second Reading. I do not want to talk further about the SETA survey. I expressed my view as a survey researcher about interpretations of questions which are in the report. It just asks what happened. I expressed a great reluctance to agree with any interpretation which made assumptions about what had been attempted when the question was not about what was attempted. The question was about what happened. The reason why it happened or did not happen was not covered by the questionnaire. To that extent, I have said that as far as I am concerned there are no policy implications from that survey which need detain us.
With regard to the issue of the Joint Committee on Human Rights, I have read paragraphs 20 to 30 of the Joint Committee's report, and I have read them with great care. The main conclusion I draw from those paragraphs is that the committee welcomes Clause 33 as a considerable improvement in transparency on what went before. I read with interest and concern the points that are made, in particular in paragraph 24, about the terms of Clause 33(5) which the noble Lord, Lord Wedderburn of Charlton, read out in detail. I read all of that with great care, but I read with particular care the conclusion of paragraphs 29 and 30 which is:
- "We conclude that the Secretary of State is entitled to take the view that the interference with access to the tribunal which the new version of clause 33 might cause would not be likely to impair the very essence of the right of access to a tribunal, and would therefore be unlikely to give rise to a violation of Article 6(1) on this ground".
- "The same considerations persuade us that the Secretary of State is entitled to conclude that any interference clause 33 might generate with the right to enjoy possessions, under Article 1 of Protocol No. 1 to the ECHR, would be likely to be justifiable on the grounds outlined in paragraph 17, above, in respect of Clause 31".
Therefore, having paid great attention to the argument, what I have read out to the Committee is the conclusion of the Joint Committee on Human Rights. On that basis, I have no hesitation in confirming that my noble friend Lord Sainsbury of Turville was right
to sign the affidavit under Section 19 of the Human Rights Act that in his view the Bill is compatible with the European Convention.I turn now to Amendments Nos. 159 and 160. Subsection (7)(b) provides powers to introduce regulations specifying what constitutes compliance with the requirement to send a Step 1 letter to the employer. Subsection (7)(c) provides powers to introduce regulations which deem this requirement to have been met even when it has not occurred. Both powers are very important. The latter can be used to exempt certain categories of grievance—say, cases involving the threat of violence—from the admissibility regime.
We have been debating that matter. My noble friends have been urging us to increase the number of cases where we would say in regulation that there should be an exemption from the admissibility regime. Subsections (7)(b) and (7)(c) are no different in principle from those which my noble friends would wish to introduce into the Bill. They are not judicial issues. There is no interference with the judicial process here. What we are trying to do in regulation, just as we are trying to do on the face of the Bill, is to provide certainty as far as is possible as regards Parliament's intention in referring matters to the employment tribunals. These amendments would seek to replace the specific regulation-making powers by the power to introduce codes which give only guidance to the tribunals.
I notice that there was no discussion whatever of the issue of guidance and codes of practice in the way in which the amendments were introduced. The aim of the amendments is to give greater scope to the tribunals to apply the admissibility criteria as they think fit.
We have argued throughout our discussions that we want to create as much certainty as we can in the application of our statutory procedures. It is not just that we want to; Parliament is under a duty to do that. We do not wish to leave too many questions to the discretion of the tribunals; that would create uncertainty. Our policy is to use regulations to define the detail of how the statutory procedures should be applied across different circumstances. We believe that this is feasible and desirable and, as regards the application of the obligation to be compliant with human rights, I remind Members of the Committee that we have an obligation to provide, and say so, that regulations themselves, as well as primary legislation, are compliant with the European Convention.
Of course, the Committee may express its own views on the matter, just as the House may express its own views, and that will be possible when the regulations are drafted and when we have the full public consultation on the regulations before they come to Parliament. However, it would be unsatisfactory, I put it to the Committee, to have the detail partly in regulations and partly in the form of guidance. It would be unfair to the tribunal and it would not fulfil the responsibilities of Parliament.
Lord Wedderburn of Charlton: I suspect when I read that in Hansard I shall find that it is one of the most extraordinary speeches made by a Minister of the Crown for many years. As regards both matters, I did not ask my noble friend for his view as a survey researcher; I asked him for his view as Minister.
First, he objects to taking out of the Bill provisions which give to the Secretary of State the right to decide what is compliance with statutory provision. If that is not a judicial matter, which, if you like, in a Henry VIII way, the Government are trying to take away from the courts and tribunals and give to a Minister, I do not know what is. My noble friend says he wants certainty. What is compliance?
Under the Bill, compliance is whatever the Minister says it is. That is certain enough, once he says something. But, as for the courts and tribunals, they are not to have what he calls a discretion to decide what the Act means. I cannot believe that my noble friend really wants to leave it there. If he leaves it there, he is stating on behalf of the Government that the Government insist that the person who decides whether this Act, on particular sets of facts, because they will have to be set out, has been complied with or not, is not the Court of Appeal but the Minister.
That is the first of point. The second is even worse. This is perhaps the most serious moment in which this Grand Committee has met. The Minister said that the Joint Committee in the end—if I may put it this way—gave a clean bill of health to Clause 33, as it now is. In Clauses 28 and 29 it did, I have said that. It did not, however, withdraw the injunction to your Lordships, who sit as a Committee of the House, to pay attention to the fact that it would have been better to put things on the face of the Bill which are not on the face of the Bill. That point has been made. But, much more seriously, it reached its conclusion on whether or not it could accept the new version of Clause 33 on the basis of being misled. Of course it was misled. I will quote the letter again. The Secretary of State wrote in the letter to the Joint Committee,
- "You asked for an explanation".
- "You asked for an explanation of the considerations underlying the policies on admissibility of claims"—
- "and adjustments to awards by employment tribunals . . . the mischief addressed in clauses 31-33 is an over-ready resort to employment tribunals. According to a 1998 survey of applications"—.
If the basis of not the SETA survey itself, but the misleading interpretation of the SETA survey put in evidence by the Government and repeated by the Secretary of State as the basis of the clause, has no policy implications now, when it was the policy implication then, how can we possibly regard the Joint Committee as not having been misled? How can we rely on a conclusion which the Government have procured by putting in front of it something which now is withdrawn? I shall give way to my noble friend.
7.15 p.m.
Lord McIntosh of Haringey: I did not say there were no policy implications. I specified where there were and where there were not policy implications.
Lord Wedderburn of Charlton: I shall read Hansard with interest. I wrote down that my noble friend had said this no longer had policy implications. I repeat what he said at Second Reading:
- "The issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms".—[Official Report, 26/02/02; col. 1404.]
- "over-ready resort to employment tribunals".
It really will not do for the Government to come here, having in effect renounced at any rate any great significance of these surveys, or rather their interpretation of these surveys. I do not wish to attack the people who actually engage in the research. If anything we have said previously does so, we would not wish that to stand, I am sure. Although, as my noble friend has said, they would have done better in this particular case on page 24 of SETA to repeat all the questions, as they did elsewhere in the report. But the Government seized on this report. They did not take care with its interpretation. They put it to the Joint Committee as the basis of Clause 33. It is now quite plainly vitiated and it is now quite plainly a misleading basis. The Government should go away and re-think this clause and the part of the Bill on which this clause is based. Workers will suffer an injustice from these provisions and, if it is not to be said anywhere else, by heavens we shall go on saying it here until the Government see sense and accept what they now see as the case. These figures are not a good basis for policy and, therefore, they cannot be a good basis on which the Joint Committee reached its conclusion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 159 and 160 not moved.]
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