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Lord Wedderburn of Charlton: My noble friend therefore agrees that if the drafting is absolutely clear, without any doubt whatever, as covering present, past and future claims in the tribunals it would, as the House of Lords held in the Ali case, be binding.
Lord Davies of Coity: My noble friend's comments suggest that if an employee understands the circumstances and has received advice, he can enter into an agreement that waives completely and totally his rights. If that is true, I am in a great deal of difficulty because my clear understanding is that this legislation was intended to avoid reference to employment tribunals by ensuring that employers had a mechanism for dealing with issues that arose in the workplace. To that extent I have supported the thrust of the Bill. If, however, the suggestion is that an employer and employee can waive all the rights that Parliament lays down to which employees are entitled in the workplace—rights relating to discrimination of any kind, to the national minimum wage and to industrial injury—I cannot see what direction we are going in. If we legislate for people to have rights, why do we legislate again so that they can waive those rights?
Lord McCarthy: Perhaps I may help the Minister? The Minister said earlier that he did not want those examples; he thought that they were bad examples. He would not call that good industrial relations. Now he says, in contradiction to what my noble friend Lord Wedderburn says, that they may not be lawful anyway because he has a different set of beliefs about what the judges would do. That inspires me to think that he might come forward with an amendment on Report to make that absolutely clear. We should make it clear that what is not in the minds of the parties when they sign the agreement does not apply. Will he put his words where his intellect is? Will he put on the face of the Bill the statement that those matters that he does not like and that he believes the courts would not have, will not take place because he has added an amendment to the Bill?
Lord Sainsbury of Turville: I suspected that help from my noble friend would not be help in the way in which I would define it. To be absolutely clear, I repeat that I dealt very clearly with this point. Case law
established that the courts will not uphold general exclusion of legal rights that could not possibly have been in the minds of the parties when they signed—
Lord Davies of Coity: I hope that Minister will excuse me for interrupting. If his view is that the courts would not uphold that, why are we legislating for it?
Lord Sainsbury of Turville: Because we are legislating for a particular set of situations that are sensible compromises, which are reached between parties—two parties in this regard—and in this case the employee will have independent advice. My noble friends suggested that they would be used for a totally different purpose—to exclude people from their basic rights. I am dealing with that situation and I am giving what I believe to be the best legal advice; that is, that case law established that courts would not uphold general exclusions of legal rights that could not possibly be in the minds of parties when they signed the settlement.
Lord Wedderburn of Charlton: Does my noble friend understand that he is saying something different from what was laid down in 2001 in the BCCI v Ali case, by the noble and learned Lord, Lord Bingham of Cornhill, for the majority of the Judicial Committee? I hesitate to read out too much of his speech—all of it is rather different from what the Minister has said.
The noble and learned Lord made it clear—I am sure that this is common ground—that the intention of the parties is to be objectively ascertained from the agreement that they have signed. What is in their contemplation is primarily recorded in the agreement. He went on, at page 342, to say:
- "This seems to me both good law and good sense. It is no part of the court's function to frustrate the intentions of contracting parties once those have been objectively ascertained".
The Minister must take that into account—future claims could be excluded. He does not want them to be, so why does he not put such a provision in the clause?
Lord Sainsbury of Turville: I think that the policy in this regard is very clear. We would like to take that point away, see what application it has to the views that we are putting forward and reflect on the matter before coming back.
Lord Wedderburn of Charlton: I believe that a few more words are appropriate. I am tempted to say that an Opposition who have put up the flag of protecting the vulnerable, and who do not take these problems seriously, are not worthy to be—
Baroness Miller of Hendon: I object to what the noble Lord, Lord Wedderburn, is starting to say. He
said something earlier to which I objected—a sotto voce remark which I heard very clearly—and I made a complaint, which is in Hansard. I have to tell the noble Lord that I thought that he had not heard my comments; he did not look as though he had heard them and he continued to chat. However, I understand from my noble friend who is sitting next to me that he did hear them. When I unavoidably went out for a few moments, he made some comments about my remarks and said that he regretted that I was not in my place.I would like the noble Lord, Lord Wedderburn, to continue our debate on the amendment by discussing the amendment and not by continually talking about the Opposition claiming to be the party of the vulnerable. We are all here from our own point of view and we are trying to scrutinise a Bill that has gone through the House of Commons. Many of the points that have been raised were not even discussed in the other place. We are sitting here patiently listening to the points that noble Lords are making. However, there is absolutely no reason, in the course of doing so, why they should continually talk about us claiming to be the party of the vulnerable or the party that is more concerned with animals or hunting, which they said earlier. We should be dealing with the amendments. We are listening very carefully. As I have said to the noble Lords before, I listen carefully to everything that they say and treat it with respect because of the knowledge that they have. I must insist that they do exactly the same for us.
Lord McIntosh of Haringey: I believe that it would be most undesirable if the fact that we are in close proximity in Committee led us to behave in any way other than how we would behave in the Chamber, where we cannot hear each other's conversations. If we studiously keep our ears open to the person who is on his feet speaking at a microphone, and if we refrain in what we say on our feet from ascribing motives to each other, then we shall get on together much better.
12.45 p.m.
Lord Wedderburn of Charlton: I am grateful to the Minister. I assure the noble Baroness that I listen very attentively and carefully to what she says, both here and in the Chamber, and I listen to her party. I always do that. I understood that the position of Members of her party was that they were now particularly concerned with the vulnerable. I believed that this clause raised an issue where the vulnerable were especially vulnerable, and I was surprised that she did not weigh in to object to the possible scope of the effects of Clause 39. I make no apology for not always pleasing and satisfying the noble Baroness. However, it is a function of Members of the Committee to criticise those whom they believe are open to criticism. I criticise my own Government, and in relation to this clause I criticise them extraordinarily.
The reply that I have been given is such that I am almost tempted to say that my noble friend lives with his advisers in some fantasy land. He says that it is all a matter of voluntary options and voluntary agreements, as though he did not hear my noble friend
Lord Gladwin give to him a straight case where options, exercised in the real world and not in a fantasy land, are exercised under pressure.The employment relationship is not one of bilateral contracting in a marketplace where the parties are equal traders. The employment relationship is one where, unless the worker has the protection of an independent trade union of strength, he is in the weaker position. That is the basis of the whole of employment law in western Europe and beyond—the worker is the weaker party. Therefore, he does not exercise voluntary options without pressure not only as regards his employer but also as regards life, discrimination and family problems.
The Law Society did not make a case different from the one that I and my noble friends made. It made the case that, if the clause goes through as it is, the unscrupulous employer could, with the approval of the citizens advice bureaux, give effect to certain pressures on workers. I was rather surprised and somewhat pained to hear my noble friend suggest that I was in any way criticising citizens advice bureaux. Without them, the workers' position would be much worse.
My noble friend Lord Gladwin gave the example of a trade union adviser. What is he to say to the worker who says, "I can have the job if I sign and not if I don't sign"? That is the predicament in which the Government will place workers. It is intolerable that this Labour Government will put workers in that position. I have news for the Minister. Expert employers' advisers are already drafting common form Clause 39 compromise agreements. Perhaps if the Minister asks them they will give him one. I have heard the rough outlines of the agreements and they will not leave any question of uncertainty. They will do what the noble and learned Lord, Lord Hoffmann, suggested in the Ali case. They will be absolutely clear and certain, and the courts will not be able, as the noble and learned Lord, Lord Bingham, said, to evade such agreements.
I press my noble friends the Ministers to be a little more forthcoming in their reconsideration of this clause which we understand they intend to make. Are they confident that the clause is compatible with the Convention on Human Rights and the Human Rights Act? Are they going to ignore the Human Rights Act in this regard, as they have ignored the 12th report of the Joint Committee on Human Rights? Are the Government confident that the Unfair Contract Terms Act 1977 could have no impact, despite the decision in the Brigden case in 2000 in the High Court, which I cited? Are they going to add a little item to the schedules, a new parcel of provisions from Postman Pat, to make it quite certain that the Act does not obstruct unscrupulous employers from using this route to freedom from the tribunals' jurisdiction?
Events move fast in this area. Today's law report in The Times shows that the European Court in Luxembourg will not accept public security provisions in Northern Ireland as a proportional ground for a blanket exclusion of a worker from the fair employment tribunal in regard to his rights against
unfair dismissal. The Luxembourg Court holds that in the report in The Times law report this morning. Is the Minister confident that this clause, together with the other clauses of the Bill, will escape similar criticism? On the point concerning the Convention on Human Rights, will they agree to the reconvening of the Joint Committee on Human Rights to consider these and other clauses?Those are straightforward questions, of which the most important is: do they understand that advisers already have in draft absolutely copper-bottomed compromise agreements, whereby workers will be asked to contract out of their rights—past, present and
future? If they do not, their reconsideration will be flawed. Will they take that away and look at it? I ask the Minister again, will they look at that and will they look at Clause 39 from the bottom up in regard to total exclusion of employment protection rights?
Clause 40 agreed to.
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