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Lord McIntosh of Haringey: My Lords, perhaps I may leave out that part of my speech which duplicates what was said in Grand Committee. I went into some detail about the extent to which my noble friend Lord Wedderburn and I were in agreement on these matters. He said—he will not mind me quoting what he said in Grand Committee—that it is,
- "common ground that nothing is more important than that we should have as many cases as possible settled by conciliation or other means before they go to the tribunal".—[Official Report, 18/3/02; col. CWH 138.]
After many sessions in Grand Committee, I hope that we have made it clear that we would like to reduce the number of hearings before a tribunal but that we would like to do so by means of a carrot. In other words, we want to make it easier and more likely that cases will be settled before the necessity of going to a tribunal arises, rather than using a stick that would provide obstacles to appearing before a tribunal. Our view is that this Bill provides the carrot rather than the stick.
Our objection to settlement on the steps of the tribunal is not on the issue of whether it reduces the number of hearings or not, but because of the proposition, and it is no more than that, that if there were to be a fixed period the parties concerned might be encouraged to go to ACAS for conciliation earlier rather than at the last possible minute.
We do not, and cannot, have evidence for that because there is no fixed period to research. If there were, we would have carried out an evaluation. What we can do is to tell noble Lords what is the view of ACAS and what our intentions are. ACAS has said publicly that setting a deadline for the end of the conciliation process could be an important factor in influencing the parties to settle a case in a timely manner. It could be an important factor. It believes that it is important that the period is followed by a timely hearing. It would prefer to see more research into the effect of a fixed period on different jurisdictions before it is implemented. We understand that concern. We intend to ensure that the effect of introducing a fixed period is fully evaluated. We will fully evaluate it. If it is proved that it does not work we shall remove the provision. We can do so by regulation.
I am a researcher, like my noble friend. I would always prefer to make policy decisions on the basis of prior research, but if one is trying something which
cannot be introduced on a pilot basis, then surely under these circumstances the way to do it is to make the provision to carry out the evaluation. If it works then our decision has been justified; if not, it can be changed without regard to primary legislation.In the absence of conclusive evidence, surely it is not unreasonable to ask parties to focus early in the process on the important reconciliation which is available to them. Focusing the minds of parties on dialogue facilitated by ACAS conciliators could lead to earlier settlement. We have not said that we believe that it will increase the number of settlements, but bring them forward in the process. That is the basis on which we propose to work and the reason why have proposed our Amendment No. 22 to remove subsection (3)(a) which attracted some criticism, rather than to do what is proposed in the amendment, which is to remove subsections (2) to (4).
2.30 p.m.
Lord McCarthy: My Lords, before the noble Lord sits down, will he therefore confirm that there is published or unpublished testimony from ACAS and that it desires this provision? If it does, I would like to see it published. As I understand it, ACAS telephones people as soon as it receives the ET1. Then, rather sooner than later, it decides that nothing more can be done. In effect ACAS withdraws. It does not require legislation or a regulation to do what is required.
Lord McIntosh of Haringey: My Lords, I have read out what I understand is the position of ACAS and I am unable to comment any further on it.
Lord Wedderburn of Charlton: My Lords, I appreciate what my noble friend has said. It would be nice to see the material published. My understanding is that ACAS can go along with it, but it is still based on the proposition that it might do something. As I understood the Minister, he said that one cannot prove the effect without doing something. If that proposition were generally established, all kinds of things would be on the statute book. They could be revoked and another section passed saying that Clause 24 is revoked. It was sad to hear the Minister rely on the fact that it is possible to take out Clause 24 by regulation. That is not the nature of research. If one said that one could not prove that a change in the law would have this or any effect at all—although it might—without actually making that change, one would never do any research at all to show that it might be likely to have a particular effect. There is plenty of research that one could do to be able to come to the House to say, which he is not, that Clause 24 would be likely to have an effect. He has not said that. It might. There is a possibility. I do not understand—
Lord McIntosh of Haringey: My Lords—
Lord Wedderburn of Charlton: My Lords, perhaps I may say before my noble friend intervenes that when Ministers intervene early on Report, it has a quite
different effect from the effect it has in Committee. In Committee, we had a long discussion on this clause. We ought to have a longer discussion than perhaps is possible if my noble friend is of the view that he has said what he wants to say. But he wants to say something else, so of course I shall respectfully give way to him.
Lord McIntosh of Haringey: My Lords, in a legitimate intervention my noble friend Lord McCarthy asked a specific question. I did not intervene earlier. As I always do on Report, I looked around to see whether anyone else wanted to come in. If ever I fail to do that, I shall be subject to legitimate criticism. But my noble friend Lord McCarthy in what I thought was a legitimate intervention asked me where the ACAS quote came from. It is paragraph 35 of the Government's response. It states:
- "ACAS considered that the proposal"—
- "had merit but that more evaluation of the impact of a fixed conciliation period was needed. They considered it could help to encourage timely settlement, especially in those jurisdictions where early contact with the parties has a positive effect".
Lord Wedderburn of Charlton: My Lords, my noble friend has now replied to my noble friend Lord McCarthy. I thought that he was going to put points to me. But, as a matter of fact his intervention is most helpful because that is exactly what I thought that ACAS said: that more evaluation was necessary before making this change, or that more evaluation would be a good idea. All we have said is that more evaluation by research would be a good idea. I cannot understand why this clause is pursued in the way that it is; albeit—I acknowledge this freely—that the Government will take out paragraph (a). I cannot understand it. Is it because, I ask myself, that this is a genuflexion in the direction of costs to those who do not want to go on conciliating?
That is a much discussed explanation. In Grand Committee we used the notion that the Bill is perhaps set in stone. We now see that one can take chips off it because they are going to take off paragraph (a). But my noble friend's chipped stone response leaves me with no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 22:
- Page 33, line 42, leave out paragraph (a).
The noble Lord said: My Lords, in moving Amendment No. 22, I shall speak also to Amendments Nos. 23, 24, 125, 127 and 139. In Committee, I outlined the Government's intentions in introducing the measures in Clause 24. The clause will provide, through regulations, for a fixed period of conciliation, after which a hearing date will be fixed, subject to ACAS advising that the period should be extended as a settlement is imminent.
I explained that it was our intention, through the introduction of a fixed period, to focus parties' minds on the conciliation process and to reduce the number of last-minute settlements, known variously as settlements in the side room or settlements on the steps. They can result in wasted judicial and administrative time in preparing for the hearing only to find that parties withdraw in the last few days or that no one appears on the day, or a more extreme case, as my noble friend cited. They also cause undue stress to the parties involved and both sides incur costs in preparing for a tribunal that never takes place. So it is best for everyone—here we are all agreed—if agreement is reached early in the process wherever possible.
It is not our intention in any way to diminish the role of conciliation in dispute resolution. Following interventions from my noble friends, I looked again at Clause 24(3)(a), which was intended to be a minor and operational provision, to see whether it was wholly in line with the Government's intentions.
It is not our wish to create circumstances under which the employment tribunal service would not automatically forward the originating application to a conciliation officer. Our intention through subsection (3)(a) was to provide through regulations that uncontested applications would not be passed to ACAS, so that its resources could be better focused on applications where both parties acknowledged the dispute.
But as a result of our debate in Committee, it became clear that valuable reconciliation time could be lost if, rather than sending an application to ACAS immediately, we waited to find out whether the respondent would contest it. We drafted Amendment No. 22 to delete Clause 24(3)(a), which is unnecessary because we agree that all originating applications for jurisdictions that fall within its ACAS's duty to conciliate should be sent to ACAS.
The further amendments, Amendments Nos. 23, 24, 125, 127 and 139, are technical amendments consequential to the changes made in Clause 24 of the Employment Tribunals Act 1996. I commend the amendments to the House.
On Question, amendment agreed to.
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