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Lord Taylor of Blackburn: My Lords, I thank my noble friend the Minister for the Statement. Is she aware—I am sure she is—of the fact that the leaders of the Asian community in this country, especially those who sit in this House, have been remarkably helpful in keeping the community informed as to what the British Government are doing? I believe that a compliment ought to be paid to them for the way in which they are working to this end with the British Government and their communities.
Baroness Symons of Vernham Dean: Yes, my Lords; that is a most helpful and important suggestion. It cannot be easy for many colleagues in public life when such issues arise. We can all applaud them for the way in which they handle such situations, and for the sensitive way in which they deal with the different communities. I, too, thank those in your Lordships' House who have been part of that sort of leadership.
Lord Avebury: My Lords, can the Minister confirm that President Musharraf and Prime Minister Vajpayee have accepted the invitation of President Putin to go to Kazakhstan, even though they have said that they will not meet each other directly? Is this not an opportunity for the civil servants on both sides to get together and consider mechanisms, such as those suggested by the noble Lord, Lord Desai? Those civil servants could at least talk about what possible mechanisms could be established—a hotline, and so on—and also what means of communication might be developed to enable them to communicate indirectly with one another at this very critical time.
Baroness Symons of Vernham Dean: My Lords, I understand that both sides have accepted the invitation of President Putin. This brings us back to
the points raised earlier by the noble Lord, Lord Wallace of Saltaire, about the helpful role that President Putin is playing. Yes, I agree with the noble Lord, Lord Avebury, that every opportunity must be taken in order to bring together those who are able to engage in some dialogue. Even if the leaders themselves will not be able to meet, those in their respective entourages ought to be able to get together on this occasion; and, we hope, seek to find at least an agreed means of trying to solve this problem, if not a solution to it. In taking some of these questions on the role of some of our international institutions, I have been made acutely aware of the fact that we do not even have a means of trying to solve this issue. Like the noble Lord, Lord Avebury, I hope that those opportunities will be taken in Kazakhstan.
Lord Campbell-Savours: My Lords, we know that the Pakistani Government—and, perhaps, the Indian Government—have been involved in the testing of missiles. Can my noble friend the Minister say whether we are making representations to the two governments to ensure that international observers are on site to monitor such testing, and the precise nature of the weaponry that is being tested?
Baroness Symons of Vernham Dean: My Lords, representations are made to both governments on these issues. However, as my noble friend will be aware, those governments are not party to some of the international treaties. There is a very complicated background to the status of both governments in trying to ensure that they become party to such treaties, and as regards acknowledging them as nuclear states. We would, of course, wish to see proper verification of the ways in which those governments are handling such issues.
Lord Campbell-Savours: On site?
Baroness Symons of Vernham Dean: Indeed, my Lords; the ways in which we would want to do so would be ways that maximised confidence in such a procedure.
Employment Bill
1.26 p.m.
Consideration of amendments on Report resumed on Clause 22.
Baroness Turner of Camden moved Amendment No. 14:
- Page 32, line 38, leave out subsection (2) and insert—
The noble Baroness said: My Lords, this amendment relates to Clause 22(2), which makes provision for regulations to include payment to another party for the time spent preparing the case. It
If one thinks about it for a moment, it will be seen to be basically unfair. A claimant may have very little on which to base a claim for time spent on preparation. If unrepresented, he may very well prepare his case in the evenings on his kitchen table. However, if this clause continues to exist unamended, a company could claim for the cost of its personnel department, the salaries of senior executives, and overtime pay for staff involved in case preparation. Indeed, the amount involved could be really very substantial.
NACAB has told us that firms already use the possibility of costs against claimants as a means of intimidation. Solicitors acting for the employer—and we have been given examples—write to the claimant and say, "We intend to fight this case all the way. It is fairly certain you will lose, and then we shall be able to claim costs. These could run into hundreds of pounds. Do you really want to run this risk? Much better not to do so—drop the case", and so on. This already happens. If preparation payments were added, we can just imagine how this could be used for further intimidation.
We made a number of attempts to amend this clause in Committee. None of this attracted government support. We were told it would all be dealt with by regulation. So we are back again on Report, discussing what I believe to be an unsatisfactory clause. The Government have tabled amendments, which will be debated later. However, I believe that our amendment is more suitable.
As I said earlier, we are not alone in our opposition. Judge John Prophet, President of the Employment Tribunals, also opposes the clause. He has gone further, and suggested a way in which it might be dealt with. He says simply this:
Our amendment seeks to add employment tribunals to the list of courts and tribunals to which the 1975 Act applies. The relevant part of the Litigants in Person (Costs and Expenses) Act 1975 reads as follows:
In Committee, the Minister gave the impression that the Government were concerned about unrepresented employees. My noble friend Lord McIntosh said that preparation for such individuals could be arduous. But the Litigants in Person Act was designed precisely to help such people. I believe that the Government were not altogether happy about this clause when we discussed it in Committee. Certainly they have put down their own amendments to it. I hope that they will agree that we do not need an all-embracing clause providing for payments for preparation. The law that we have suggested will do perfectly well if only the Government will agree to the amendment. I beg to move.
The Deputy Speaker (Lord Elton): My Lords, I have to tell the House that if this amendment is agreed to I shall be unable to call Amendments Nos. 15 and 16.
Lord McIntosh of Haringey: My Lords, I am unhappy about the amendment but from very much the opposite point of view to that put forward by the noble Baroness, Lady Turner. I recognise the origin of the amendment and respect Judge Prophet's position. But the amendment will make matters worse for applicants, in particular for unemployed applicants. It would have the reverse effect to that which has been suggested.
Tribunals were established with particular principles in mind and with their rules and procedures framed in a particular way. We have debated already, both in Committee and today, the extent to which there are legitimate and proper differences between tribunals and the civil courts— and one particular difference is in the costs regime.
In the civil courts it is the general rule that the loser pays the winner's costs, whereas in the tribunals costs are limited and are awarded in less than 1 per cent of cases. When I debated this issue with the noble Baroness, Lady Miller, I rather took the silence of my noble friend Lady Turner to indicate that she agreed with what I was saying—that is, that we believe costs should be awarded only in a very small minority of
Tribunal rules on costs are simpler and less detailed because, in general, parties do not expect to claim costs or to pay them and because it is far more common for parties to represent themselves. That is part of the wider access to tribunals which is provided, which has always existed and which is continued in the Bill.
The reason why we have not gone down the litigants-in-person path is that we do not want to require parties to keep detailed records of time spent, expenditure and financial loss in the same way as they might if they could generally expect to recoup their losses. This would be disproportionate. It makes sense in a system whereby a party can always expect to face costs, but in a system like this, where costs are not a common occurrence, the question of costs is likely to be retrospective—in other words, people will not have thought about it from the start and they will not have kept detailed records of time spent and expenditure such as phone calls and postage.
The litigants-in-person provision provides that litigants in person may claim for payments reasonably made by them for legal services relating to the conduct of the proceedings, as well as an hourly sum in respect of costs which would have been allowed if the work had been done by a legal representative. I understand the concerns to which my noble friend referred. They have been raised by employee representatives, advisers, trade unions and the legal profession—although not by the Law Society, which is now supporting us on this matter.
The level of costs awards would rise if tribunals were able to award both legal costs and preparation time. That was the issue which occupied a great deal of time, quite legitimately, in Committee. But we have dealt with that. Amendment No. 17 specifically states that you cannot have awards of both costs and preparation time; it has to be one or the other. I believe that that deals with the substance of the major concerns expressed in Committee.
In the civil courts and in the Employment Appeal Tribunal most people have legal representation, whereas in employment tribunals parties are frequently represented by other sources. Applicants who have legal representation from a voluntary source would not be litigants in person and so they would not be eligible to claim their preparation time, despite the fact that they may have still undertaken the bulk of the preparation work and have been subject to vexatious behaviour or forced to pursue a case through a tribunal when the employer has no reasonable defence to the claim. Such a party would, under the proposed government amendment, be eligible to receive either costs or a preparation time award, whichever was the more appropriate. Let us take the case of an unemployed applicant. Such a person cannot use the litigant in person provision, but he or she can use the provision for preparation time provided for here.
Concerns have been expressed about the hourly rate. We intend to work out in the consultation on the regulations how the preparation time award will be assessed—what the hourly rate will be. We have said that we will lay down guidelines for the tribunals and will consider a ceiling on case preparation awards; ranges of amounts by reference to different jurisdictions—that is, for different issues coming before the tribunal—to ensure that claims are proportionate; linking assessment to the applicant's rate of pay or former rate of pay; and the remuneration of the employee of the respondent who dealt with the matter; or, indeed, a standard rate. We want to ensure that only reasonable levels of preparation time are compensated which are proportionate to the complexity of the case.
The amendment would impose burdensome record-keeping requirements when, in the vast majority of cases, they will not be needed. We cannot accept the amendment because we have brought forward Amendments Nos. 16 and 17 which meet the concerns about potentially higher costs awards if parties could claim legal costs in addition to preparation time.
"(2) In section 1(1)(b) of the Litigants in Person (Costs and Expenses) Act 1975 (c. 47), after "Northern Ireland,", there is inserted—
"(bb) employment tribunals,"."
"Take out clause 22(2) and instead have an order made by the Lord Chancellor under Section 1(1)(c) of the Litigants in Person (Costs and Expenses) Act 1975 specifying Employment Tribunals. This has been done for Employment Appeal Tribunals in the Litigants in Person (Costs and Expenses) order 1980".
Judge Prophet has also said that this will bring preparation time for unrepresented parties within the normal costs procedure operated by employment tribunals, and that it can be used to cover situations where the party is not legally represented. Our amendment seeks to do precisely that without having to have an order made by the Lord Chancellor.
"Where, in any proceedings to which this subsection applies, any costs of a litigant in person are ordered to be paid by another party to the proceedings or in any other way, there may, subject to the rules of court, be allowed on the taxation or other determination of those costs sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates".
It continues:
"This subsection applies to civil proceedings"—
and it lists the courts to which the Act applies. We are seeking simply to add to that list the employment tribunals. This is a simple and, it seems to me, a rather elegant way of putting Judge Prophet's suggestion into operation.
1.30 p.m.
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