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Baroness Miller of Hendon: My Lords, I accept the explanations given by the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Practice directions]:
Baroness Miller of Hendon moved Amendment No. 30:
- Page 35, line 8, at end insert—
The noble Baroness said: My Lords, I am concerned about consistency in the practice of different tribunals. Since the late 1940s or 1950s, when tribunals were introduced extensively into the judicial system—
I believe it is important that, like the regular civil and criminal courts, they all operate to the same, consistent procedure. That is my view not only in relation to tribunals which adjudicate on the same subjects but also in relation to those which adjudicate on differing topics. The ideal situation would be for a common set of rules and procedures to be laid down by statute and secondary legislation, as is the case, for example, with the Civil Procedure Rules, which regulate the civil courts.
I realise that parliamentary time is not readily available to lay down a common set of rules and practice directions. However, until that ideal time arrives, it is important that, so far as possible, procedures are consistent between tribunals which operate under the Bill. I want to point out to the Minister that it has been the practice of his noble and learned friend the Lord Chancellor and the noble and learned Lord the Master of the Rolls and their respective predecessors to consult the legal profession or their representatives before introducing major changes in practice and procedure.
That was particularly the case when the noble and learned Lord, Lord Woolf, carried through his major overhaul of the Civil Practice Rules a few years ago. It is important that the president, in setting the tribunal rules, consults interested parties so far as possible. That is the purpose of subsection (4).
Subsection (5) is a saving provision. No one should be able to attack the procedures on the basis that a person who considered that he should have been consulted was not, for whatever reason. I shall be most interested to hear from the Minister what steps will be taken to ensure that new practice directions, as distinct from those which are already in use under earlier legislation, will be the subject of appropriate consultation.
I should also be glad to hear from the Minister whether in the future—however distant—the Government will consider providing the drafting resources from all the departments concerned to produce a common set of tribunal practice rules. I beg to move.
Lord Sainsbury of Turville: My Lords, consultation is extremely important in these matters. I hope I can persuade the noble Baroness that we are taking a commonsense and pragmatic approach to this issue. Like its predecessors in the other place, this amendment seeks to force the tribunal presidents to consult in all circumstances rather than to rely on their common sense.
There may, for example, be a large number of applications, running into thousands—perhaps even tens of thousands—arising out of a judgment of the European Court of Justice. Those affected may be spread over a number of different workplaces
Accordingly, the president may decide to issue a practice direction about such cases. He may very well wish to consult, but it may be more sensible to consult just the parties concerned and their representatives rather than to embark on a more general consultation. It would seem more sensible in this situation to consult the parties and their representatives direct without involving other organisations.
Sometimes the president may wish to issue a practice direction in order to ensure a best practice approach. There will be occasions when he may feel it desirable to consult to ensure that it is indeed best practice. On other occasions it may be plain what constitutes best practice, not least because there may have been complaints about the practice in some regions which the practice direction is eliminating. Where that is so, there really is no point in consulting. Indeed, if a practice direction is required to deal with a problem as a matter of urgency, a statutory requirement to consult could diminish its effectiveness.
The different situations that may arise mean that it is inadvisable to constrain the presidents by requiring them to consult widely on every practice direction. I am sure that they will recognise that there will be times when employer and employee organisations and others will have a useful contribution to make and they will consult them. But it should be left to them to make up their own minds, as is already the case with the president of the Employment Appeal Tribunal. Further, it is worth noting that there was overwhelming support in consultation for this proposal and in particular that the Council on Tribunals in its favourable response did not suggest the need for the presidents to consult.
I can see no reason why anyone else would draft the directions. That should be done by the presidents themselves. For the reasons that I have given we cannot accept the amendment.
Baroness Miller of Hendon: My Lords, I was not suggesting that the presidents would not use good common sense. I am sure that presidents of all tribunals would use good common sense. My point was that I believe that there should be consistency between the whole array of tribunals so that when people appear before a tribunal they know what is likely to happen. Clearly, the Minister does not agree. If he did, he would suggest that at some time in the distant future we may get people together who will come up with a set of rules to which everyone can agree. However, I do not want to burden the Minister with thoughts of the distant future when he is certain that he is right at the present time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Pre-hearing reviews]:
Lord Wedderburn of Charlton moved Amendment No. 31:
The noble Lord said: My Lords, striking out has been mentioned in recent discussions on previous amendments, so Amendment No. 31 appears more important than we previously thought. The easiest way to explain quickly why we have tabled the amendment again in a slightly abbreviated form is because in our view pre-hearing reviews are peculiarly not suited to striking out, which is a nuclear weapon as far as an applicant is concerned and destroys his cause of action altogether.
On 13th December 2001, the Minister of State, my honourable friend Mr Alan Johnson, said,
But when we looked again at the Explanatory Notes, which were repeated when the Bill came to this House, we found that there was constant reference to striking out of very weak or weak cases. For example, they state,
When the Explanatory Notes insist three times that it would include weak or very weak cases and refer to a party to a case which was judged to be wrong in its interpretation of the cause of action, our anxiety returned. No pre-hearing review can judge that the applicant is wrong in his interpretation of his case as opposed to disclosing no cause of action, which is a fundamental distinction, without hearing evidence.
I immediately interpose to say that it is not only those cases to which the Explanatory Notes refer, nor indeed the other documents which preceded this Bill such as Routes to Resolution. There is constant reference to weak cases. Unless the Government make it absolutely clear that strike out is not to apply to weak cases, but will only apply to the cases which are already in rule 15, namely, scandalous, misconceived and totally unreasonable and not disclosing a cause of action, there will be constant worry. We all hope to see a draft of the regulations any day before Third Reading. In that event we shall see whether it is so or not. But there is a great worry. The Government began by saying that there were going to be wide powers for strike in the regulations. They then say that it applies only to extreme cases. And then on 18th March my noble friend Lord Sainsbury said that it referred to the cases at the extreme end of the spectrum covered by the terms "vexatious" or "misconceived".
We would welcome the Government bringing forward another amendment that makes that clear. I tabled the amendment in view of what was said in Grand Committee. I have not yet had a reply, which makes me totally reassured that the power to strike out
"(4) No direction or practice direction made under this section shall be made until the President has consulted, so far as is practical, with employers' and employees' organisations and persons who have evinced an interest either in the operation of employment tribunals generally or the issue being regulated specifically.
(5) No inadvertent failure to consult, nor any omission of any potential consultee, under subsection (4) shall invalidate any directions made under this section.""
Page 35, line 14, at end insert "but in such review proceedings the tribunal shall not strike out an originating application or notice of appearance save in the circumstances set out in paragraphs 4, 7 and 15 of the Employment Tribunal Rules of Procedure (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171))"
"We intend to amend the employment tribunal regulations to include a strike-out power at the pre-hearing stage".
That point worried us very much. Our anxiety was slightly assuaged by his counterpoint in the case he put forward when he added that the Government do not envisage the power being used to a huge degree:
"We do not envisage it being used other than in extreme cases". [Official Report, Commons, Standing Committee F, 13/12/01; col.113.]
"Although rule 15 of the main Employment Tribunal Rules of Procedure permits the strike out of certain cases, including weak cases"—
I interpose that it does not include weak cases—
"it is arguable that the current rules do not allow the strike out of weak cases at pre-hearing review".
It is necessary to say immediately—and this is a matter of very great importance if pre-hearing reviews are to have power, even in extreme cases, to strike out—that Rule 15 regulations give to the tribunal the power to strike out in cases where the application is vexatious, unreasonable, or misconceived which may be generally described as disclosing no cause of action.
"Rule 15, to which the amendment refers, provides power to strike out an originating application or notice of appearance at any stage of the proceedings on the grounds that it is scandalous, misconceived or vexatious, or that the proceedings are being conducted in a scandalous, unreasonable or vexatious manner. As I have already said, we expect proceedings to be struck out only when cases are hopeless; that is to say, those at the extreme end of the spectrum covered by the terms 'vexatious', 'misconceived' and so on. I stress here the word 'misconceived' because it is those cases to which the Explanatory Notes refer". [Official Report, 18/3/02; col. CWH 173.]
"In the light of Clause 28, it will in due course be necessary to amend Rule 7 of the main employment tribunal rules of procedure to allow for strike out".
I should like him to tell us what that Rule 7 amendment will be. I do not understand what that implies. He continued:
"The new rule will need to specify when the strike out power may be exercised".—[Official Report, 18/3/02; col. CWH 174.]
Why? Why not say that it will be exercised when Rule 15 says that it will be exercised; that is, to the cases at the "extreme end of the spectrum"—his words not mine—which are vexatious, misconceived and so on? Therefore, what is the objection to our amendment? He may say that it will all be clear in the regulations. This is such an important point that any hint that the power to strike out could be extended should not be left to our understanding of the regulations. It should be made clear on the face of the Bill.
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