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Lord McIntosh of Haringey: The first criticism that my noble friend Lord McCarthy makes involves the lack of an explicit reference to ACAS in this part of the Bill. Basically—on the availability of ACAS—ACAS can already provide conciliation to parties in advance of a tribunal application in certain circumstances. There is no reference because that facility will remain in place—the Bill does not affect that position.

It is possible that ACAS could be involved in a case in the period before the employee presents an admissible application to the tribunal. What I think lies behind this amendment is the assumption that failure to meet the admissibility criteria will debar or prohibit the employee from applying to the tribunal a second time. As we have said in response to a number of earlier amendments, this is not the way in which we intend the admissibility regime to work. As a general rule, applicants who originally make an inadmissible application would be given a second chance to make an admissible application.

In other words, employees would be given another opportunity to open up a dialogue with the employer by initiating the statutory grievance procedure. If they then fail to sort out the problem between themselves using the procedure, the employee can make a second application to the tribunal which meets the

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admissibility criteria. Where that happens, ACAS would be informed that an admissible application had been made and ACAS's conciliation services would be offered to the parties in the normal way.

The failure by applicants to meet the admissibility criteria with their first application does not close off the opportunity to involve ACAS at some stage before the matter reaches the tribunal. We do not need to make special provision to secure ACAS involvement, as the amendment seeks to do.

Lord McCarthy: I am sorry, but I shall read the conciliation procedure, which is the basis on which ACAS intervenes, as stated in Section 19 of the Employment Tribunals Act 1996. It states that employment tribunal procedure regulations,

"shall include in relation to the employment tribunal proceedings, in the case of which any enactment makes provision for conciliation—

(a) provisions requiring a copy of the application".

But he cannot have it, because he has to complete it within 28 days. However, it states,

"provisions requiring a copy of the application by which the proceedings are instituted, and a copy of any notice relating to it which is lodged by or on behalf of the person".

But we do not have those pieces of paper. It goes on,

"against whom the proceedings are brought, to be sent to a conciliation officer".

That is how they get in in the first place. Paragraph (b) goes on,

"provisions securing that the applicant and the person against whom the proceedings are brought are notified"—

they have to be notified—

"that the services of a conciliation officer are available to them".

They are available to them because ACAS has authority, based upon the fact that there has been an ET1. That is their authority. It continues:

"(c) provisions postponing the hearing".

Someone has to postpone the hearing; otherwise, as happened in the old days, one might get to a hearing; of course, one would not get there now, but never mind. But never mind. Paragraph (c) states:

"provisions postponing the hearing of any such proceedings for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn".

That is how the arrangement works. I am not saying that there never has been a case in the history of man when ACAS has been involved in a hearing before they got the piece of paper.

That is not what is supposed to happen. In all other cases, it is absolutely clear when ACAS becomes involved. What the Minister does not answer is why the Dickens that cannot apply in this case. He says, "We know that ACAS sometimes gets in round the back door". How is it supposed to know what is going on, what its authority is and what papers to work from? Why the Dickens cannot that be in the Bill?

Lord Wedderburn of Charlton: Before my noble friend proceeds to withdraw the amendment, does he also not agree that the reply we have been given means

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that being prohibited from presenting a complaint is, in the view of the Minister, not a terribly serious matter, because one will go away and make a second complaint? Therefore, it does not seem that the tribunals will be relieved of many hearings. The Minister says that the prohibition will generally be followed by a second complaint that will get to the tribunal. How can the Government save 40,000 cases out of that?

Lord McIntosh of Haringey: Perhaps I may try again because I have not come very far with what I have said so far. First, many grievances are handled internally by employers without ever involving a third party. I believe that that is common ground. It is the normal way in which disputes are resolved between employees and employers That is a matter of fact and that is the pattern of behaviour that we want to encourage. We certainly do not want to say that ACAS should always be involved and the noble Lord, Lord McCarthy, does not want that either.

What I said was that ACAS can already provide conciliation to parties in advance of a tribunal application in some cases. That is provided for in Section 18(3) of the Employment Rights Act 1996. It provides for ACAS to conciliate before an application is made. The point I am trying to make is that that will continue; that is not affected in any way by the Bill.

Lord McCarthy: The point is that in the good old days nothing got in the way of the application. There was no possibility that one would needed a barrier. The worker could not even write a postcard. If the worker could write a postcard, he would be sent an ET1 and the whole process would begin; the data would be collected and off we would go.

Unless the Minister can bring me figures to show that the great bulk of ACAS entries are brought in without using the formula, I do not see why he objects to the proposal. I do not see why he is being so difficult. Of course, a great number of settlements are achieved in the normal way without bringing in ACAS. However, at present if the individual worker thinks he is getting nowhere he can blow a whistle. The whistle he can blow is to send either an ET1, or whatever, to the ET service and say, "I want conciliation". He is really saying, "I want some help. I want conciliation". He gives notification and ACAS has authority. The applicant has asked for him to come in and that is the usual way forward. The Minister does not answer me by saying that the normal way is not to use it or that the normal way is to settle the matter domestically. That is a completely de novo situation.

One of our main criticisms of the Bill, and we have made it over and over again, is that it has been produced in a factual vacuum. Provisions have been put on the face of the Bill by people who do not understand the consequences of what they are doing. They are now imposing conditions. They say they impose those conditions to help the worker and I accept that. However, the critical condition in this context is they have their 28-day wait. In that period, they give no help at all.

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If we were living in the 1970s—I am not saying that I want to go back to living in the 1970s—there would be a stoppage and, by God, ACAS would come in then. Things would happen and the Bill would be changed, but all we have are our arguments.

Lord McIntosh of Haringey: I do not know whether the noble Lord, Lord McCarthy, was thinking of withdrawing the amendment but I want to make an apology first. I said wrongly that Section 18(3) of the Employment Rights Act 1996 provides for ACAS to conciliate before an application is made. It is Section 18(3) of the Employment Tribunals Act, not the Employment Rights Act. I apologise for that.

I am grateful for what the noble Lord, Lord McCarthy, said about the context in which we are debating the issue. After all, the Bill, for the first time, gives all employees access to dispute procedures. Three million employees will be covered by procedures who were not previously covered by procedures, and that is the context in which we have to look at it. In those circumstances, surely the issue of what happens in 28 days is of secondary—I will not say minor—significance.

4.15 p.m.

Lord Wedderburn of Charlton: Before the Minister sits down, will he not appreciate that Section 18(3) applies at a time where,

"a person claims that action has been taken in respect of which proceedings could be brought by him before an employment tribunal".

The situation we are discussing is a case where he is prohibited from presenting a complaint. I appreciate that Section 18(3) is a general provision about conciliation, but it applies where action has been taken in respect of which

"proceedings could be brought by him before an employment tribunal".

I do not understand why even the citation of the right Act and this section does not help the Minister.

Secondly, does the Minister not understand that the Government have already amended Section 18 in Clause 24, to cut out a duty to conciliate in certain situations and impose a power. We objected to that at the time, but how Section 18 helps the Minister I do not know.

The point that my noble friend and I are pressing is that under Section 19 there is the natural route for the case to reach the ACAS conciliation officer. Section 19 provides that where one has a complaint that is presented to the tribunal one sends it as a matter of course to the conciliation officer. When the Government's provisions prohibit access to justice, why not allow the matter to go as a matter of course to the conciliation officer? It might help to get a settlement. That is all there is.

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