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Lord McIntosh of Haringey: My Lords, it was a slip of the tongue. The figure was £26.2 million.
Baroness Miller of Hendon: My Lords, I am pleased about that. The noble Lord knows that I was listening carefully to what he said and I picked it up immediately. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 25 [Power to delegate prescription of forms etc.]:
Lord McCarthy moved Amendment No. 26:
- Page 34, line 21, leave out "required by" and insert "issued under"
The noble Lord said: My Lords, it has been agreed that I should speak to Amendments Nos. 26 and 27. Amendment No. 27 is the substantive amendment. It takes us back to Clause 25 and the power to delegate the prescription of forms which will now replace our old friend ET3.
We are inserting two new paragraphs which significantly limit the scope of a Secretary of State to prescribe additional conditions and requirements on the form which will replace the existing arrangements. We do that because to a considerable extent in industrial relations on the floor and among trade unionists and employers, the clause was and still is the one which they worry about and fear. It is certainly feared by the unions and by the CAB, with their considerable experience, and by the Law Society and Judge Prophet. All those who have worried about the Bill have made a point of saying that they are worried about what one might call the "gateway clause". They believe, and have believed for some time, that taken together with the statutory procedure provisions this is one of the critical swinging elements. They believe that if there is to be a significant reduction in the number of hearings and applications, this is the way things will go.
The Government deny that. They do not tell us how the change will come about but they say that it will not come about through this legislation. Mr Johnson, on 11th December at col. 102 of the Official Report, Commons, said that the aim was a simplification. He even told us that there would be boxes which people could tick. He told us that he wanted the clause to be user-friendly; that he wanted it to facilitate easy access; and that we should not worry about it.
On the other hand, in Committee my noble friend Lord McIntosh gave rather more credence to our fears by admitting that it was,
- "extremely wide-ranging. It seems that, under the terms of the clause, one could make quite dramatic changes".—[Official Report, 18/3/02; col. CWH 154.]
That sounded rather reassuring. Yet at the time the Government would not accept what we thought were a series of modest amendments aimed at limiting the application and the freedom of the Secretary of State. So we have tabled new amendments at this stage. They arise out of what we have been told. The Government have said that applicants shall not be required to demonstrate a knowledge of the law. In Committee we asked for that assurance to be put on to the face of the Bill, but the Government would not agree to do that. It has now been included in the amendment.
The Government said that they would not go beyond the direct experience of the applicant. Applicants would not be asked whether they know what is the law and they would not be expected to know what practices their employer operates that are not necessarily within the applicants' direct experience. Again, that has been included in the amendment.
After some interchange, we received a clear statement that there would be no breach in the present practice of making the forms voluntary. You do not have to have a form. However, it was said—it is quite reasonable—that if you write a postcard or a short letter, the form will be sent, because that will be the easiest way to fill in the background that the parties have to provide if there is to be conciliation. We accept that.
In the amendment we have tried to collect together statements which we think that the Government will accept in order to make this gateway clear, precise and easy. Perhaps the Government will say that the provision is all right as it is and that it will all be made clear in the regulations. I would ask my noble friend not to respond with such a simple answer. If he looks to the right, the left or a long way ahead, he will see that his view that everything can be decided in regulations and that everyone will in some way be aware of what is in the regulations is being undermined.
I take it that my noble friend has taken to bed with him the report of the Better Regulation Task Force, Employment Regulation: striking a balance. I am sure that he knows it by heart. In some ways the task force is a strange body. It is composed almost entirely of employers. Only one trade union general secretary is included. The entire terms of reference of the task force are designed to view the position from the point of view of the depressed employer. There is nothing about trade unions and how regulations might hurt them. The task force is concerned only with how the provisions in various employment protection Acts might affect employers.
Despite that, employers say that they find the provisions blindingly complicated. They have made various suggestions, to which I shall return later in our discussions on Report, for making things easier.
However, all those suggestions suit the employers. Reading the report, I am bound say, "What about the workers?". Surely it would be a good thing for the Government to point to a simple gateway that includes the explanations we have proposed in our amendment, rather than bury them in a set of regulations. It would be better if they were set out on the face of the Bill. The tick-sheets should be circulated with the explanations set out, stressing that there is no desire whatever to make this part of the Bill blindingly complicated. I beg to move.3 p.m.
Lord Gladwin of Clee: My Lords, I am afraid that I am unable to direct the attention of my noble friend the Minister to the column in Hansard that reports our debate in Grand Committee. However, perhaps I may remind him that we were told that the draft of the new IT1 form would be available for us to see before—I hoped—we reached Third Reading. Concern has been expressed about the demise of IT1; indeed, the kind of matters described by my noble friend Lord McCarthy are causing concern. My answer has been to reassure myself that we would see the draft beforehand; that is, before we reach the end of this stage of the Bill. I asked for an assurance, and I received an affirmative answer. When we were told that the parties would see it, I asked whether we would also see it. I was told, "yes". Can my noble friend tell the House when we shall see the draft?
Lord Wedderburn of Charlton: My Lords, I should like to raise two simple points in support of my noble friend's amendment. First, if only the prescribed form in some new shape is permissible to begin an application to an employment tribunal, there is a fear that the process will drift into complexity. That is not my fear alone; it is the fear of many chairs of tribunals. It was also the fear of Judge John Prophet, who wrote a long memorandum on the subject about which my noble friend the Minister will be aware. He will know the way in which the judge put that fear in the memorandum. The prescribed form must not become something that is required of the worker in the form of a letter before action.
Secondly, Clause 25 is centrally important to the Bill, because it is the hinge upon which it seems other parts of the legislation will be brought into effect. When we turn to Clauses 29 and 32 and Schedule 2, we see that there are limitations upon the ability of workers to present claims to employment tribunals, unless they have satisfied certain conditions. It is our contention that those conditions are unfair, but we shall debate those issues at a later point.
Quite apart from that, it has often been suggested that the evidence as to whether workers have complied with those conditions will be found in their answers to the new ET1. If that is the case, they will be asked to state all sorts of things of the new ET1 that will lead them into questions that this amendment would lean against—not least questions of law. Therefore, this is
an important amendment, not only because of its effect on Clause 25 but also because of its effect on the entire structure of the Bill.
Lord McIntosh of Haringey: My Lords, I shall try to deal with the many issues that arise under this amendment. Perhaps I may, first, deal with the issue of what is to be required. We shall be making transitional arrangements so that, for a period to be decided, applications not on the prescribed form will be accepted. After that, the use of the form will be compulsory and applicants who submit claims that are not on the new form will be asked to complete it. If they apply by letter, by postcard, or whatever, applicants are already sent a form.
Standardised application and response forms are designed to encourage parties to convey at the outset the information that is needed to understand and evaluate their case. Around 99 per cent of people already use the existing form, and the new form will be widely available. The guidance on completion of the form will be closely tied to the form itself and made available with it, so that anyone using any other document would, in any case, be at a disadvantage.
I must say that that is in contrast to the existing form, a copy of which I have in front of me. It seems to me to break many of the rules of questionnaire design from which I spent most of life earning my living. Noble Lords may like to imagine Question One, which reads:
- "Please give the type of complaint that you want the tribunal to decide—for example, unfair dismissal, equal pay ... a full list is available from the Tribunal Office . . . If you have more than one complaint, list them all".
I said that on the expiry of the transitional period the form will be compulsory, but it will be mandatory to answer only a small number of key questions. There will be other questions which it will not be mandatory to answer. The mandatory questions will include details of the parties and details of the claim. These are already set down in the current rules. They may also possibly include dates of employment and pay—both of which are already on IT1—and, if the case is one of unfair dismissal, whether the applicant has found other work.
In addition—this is where the concerns arise—there will be two or three simple questions on whether the required steps under statutory grievance procedure have been taken. For example—I am not using the exact words—"Have you written to your employer about your grievance?", which could be answered by means of a tick box; and, "When was this done?" There is nothing technical involved in these questions. They
are necessary if tribunals are to be able to draw the attention of applicants to a possible omission and to give them a chance to rectify it.The amendment seeks that the form should not cover questions of law or questions outside the direct experience of the applicant. Clearly the two or three simple questions on the required step do not fall into the categories set out in Amendment No. 27. However, it is important to stress that only a tribunal will be able to decide whether to admit a claim where it is doubtful that the admissibility criteria have been met. This is an issue for judicial determination. Where possible, tick boxes will be used. I do not see anything wrong with that.
The aim of all this is to improve form IT1. I know about Judge Prophet's views but perhaps I may cite Colin Milne, the president of the Employment Tribunals in Scotland. In his response to the consultation paper he said that the current forms—that is, IT1 and IT3—produce inadequate information. They should give more information from the parties so that the issues are clearly focused before the hearing. At the moment, it is all too common for an applicant merely to put down something such as, "I was unfairly selected for redundancy", without stating whether this was because the criteria were unfair or applied wrongly, or because there was no consultation.
If tribunals get this information sooner, they can process cases more quickly. At the moment they need to send the parties orders for further and better particulars of their case. It is estimated that the total number of interlocutory orders would be reduced by some 25 to 30 per cent, a very significant reduction, which would free resources for other work.
The new application form should help people, not deter claims. All it will seek is key information which will come into play during proceedings in any case. It would be helpful for everyone if this were set down at the outset.
A key aspect will be the supply of comprehensive guidance on how to complete the form. At the moment, for all practical purposes, people are given a blank sheet of paper when it comes to the highly important point of setting down the details of their claim. That is what the reverse of the form is for. It is the most unhelpful form of form, if I may put it that way, that I can possibly imagine.
Respondents will be obliged to address fully the more detailed claim provided by applicants. As a result of doing this, the issues raised by the case will be immediately identifiable—far sooner than they are at the moment. Chairmen would have some information upon which to work to case-manage the issues. It would also provide more information to ACAS and thus could lead to more effective conciliation.
I was asked by the noble Lord, Lord Gladwin, about a commitment that a copy of the new form would be available. I am not aware that I gave any commitment on that point. Officials can find no reference to it in Hansard. If I am wrong, of course, I am very sorry.
It is the case that there will be full consultation on the form. It is, among other things, in the remit of the Employment Tribunal System Task Force to which I have referred. In my experience it is not normal for forms of this kind to be the subject of parliamentary scrutiny. If by any chance anything is available that can be shown to the House before Third Reading, it will be. However, I am not conscious that it can be or will be.
The application form will be simple to complete. It will require only information that the applicant will have to supply anyway during the course of the proceedings. It will, I hope, be better designed, to make it easier to complete than the present form. It will enable the applicant to give a better account of his case. There is certainly no intention of deterring applicants by asking numerous questions or complicated questions about the use of procedure or any other matter. Indeed, if we were to try to do so, I suspect that we should fall foul of human rights considerations. I hope that these amendments will not be pressed.
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