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Lord Sainsbury of Turville: My Lords, this amendment is concerned with the scope of striking out a claim or defence at a pre-hearing review. That is an issue we had intended to address in regulations. The clause paves the way for that.
There was concern expressed in Grand Committee, which has today again been expressed by my noble friend Lord Wedderburn, that cases should not be subject to striking out merely because they are weak. His concern arises because the Explanatory Notes uses the term "weak cases" in relation to the strike out powers in Rule 15 before saying that the Rule 15 powers arguably do not apply to pre-hearing reviews. Of course Rule 15 does not actually use the word "weak", which was merely intended to be a shorthand description of the actual terms used—"scandalous", "misconceived" or "vexatious".
I think that in practice we are in broad agreement with the spirit of the amendment as we envisage that striking out will occur only rarely and that the current deposit procedure will remain the main sanction. We have no intention to widen the grounds in the regulations on which tribunals may currently strike claims out, nor do we intend that the grounds for strike out at a pre-hearing review should be any wider than the existing grounds. Since evidence is not generally heard at a pre-hearing review, it would be absurd if tribunals had greater scope for strike out at that stage than they currently have to strike out at other stages of the proceedings.
As I say, we intend to achieve the intended effect of the amendment through regulations. However, I am prepared to consider whether it is possible to return at Third Reading with an amendment which encapsulates the spirit of this one, if not its exact wording. Our Parliamentary draughtsman will of course have his own views on how to give effect to that spirit. I hope that, in view of this undertaking, the amendment will be withdrawn.
Lord Wedderburn of Charlton: My Lords, I am most grateful to the Minister for his remarks. We may not have scored any runs on the amendment, but at least we have not been run out. We look forward to his further suggestions at Third Reading. I meant to say in my remarks that, in the interests of the wider understanding of the public—who are agog with interest at our exciting debates— we were very grateful to him for all the details on deposits and the few deposits which have occurred in recent years that he gave us in Grand Committee. Those statistics were most useful in other respects. What he has said today is most encouraging. We look forward to something on the face of the Bill at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 33:
- After Clause 28, insert the following new clause—
The noble Lord said: My Lords, in moving Amendment No. 33, I shall speak also to Amendment No. 110. We have agreed that we should take them together because they say the same thing in different parts of the Bill. They commit the Government to publishing in draft all regulations and requirements 84 days before they are made, decided and presented to Parliament. That would give us ample time for the widest possible consultation before Parliament decides.
It may be asked: how we did we decide on that demand? Why do we ask for that in the Bill? There are several reasons, which I shall quickly skate over. We have complained, as people complained under the previous Government, about the long history of the use of regulation. I remember the noble Lord, Lord McIntosh, and I complaining about what the Conservative Party did with its mania for regulation. So there is a long history of people complaining about regulation. There are controversial parts of the Bill that almost all depend on regulation. So the regulations are critical to what the Bill means.
Secondly, we feared in advance of Committee that we would not be able to change much in Committee—perhaps we were rather cynical—so we tabled a version of the two amendments in Committee so that the Government could say whether they agreed with us about the need for advance regulations. The Government were not prepared to accept the amendments, but we were glad that we tabled them, especially when the noble Lord, Lord Sainsbury, rose to speak on 18th March. I apologise that I must read extensively from what he said—indeed, the greater part of my speech consists of reading extensively from what he said. He said, first:
My noble friend Lord Wedderburn stressed the need to go beyond the usual channels in this case because of the number of workers and employers affected and the need to publish a draft as well as to place documents
So we asked about publication in what I may call off-net form for those millions of people who cannot make head nor tail of the net. We also asked about the length of time for which they would appear, which was not yet clear, and the status of the draft—so that the draft would not be a fait accompli. That produced the following, final exchange. I said:
We think that we are doing no more than saying what the Minister said: are we right? Will it be 12 weeks or six weeks? Will it be on the web and the non-web? Will it all be done before Parliament makes a decision? That is what the Minister said, and we are asking him to honour that. I beg to move.
Lord Gladwin of Clee: My Lords, I apologise to the House and to my noble friend Lord McIntosh of Haringey. As my noble friend Lord McCarthy would say, I misremembered the debate in Grand Committee. My memory was that it was about the draft publication of the new ET1 and ET3: in fact, it was about the publication of the regulations to which my noble friend Lord McCarthy has just referred.
Hansard reports a discussion between the Minister, the noble Lord, Lord McCarthy, and me. I said:
Lord Sainsbury of Turville: My Lords, I am sometimes amazed at the consistency of the statements that I make. If there are cases of DTI consultation documents not being put on the net, I would be glad to hear of them. I know of no such cases, and none has been raised. It is our policy to do so, and it is an important part of the consultation, albeit that it is no substitute for the written document.
Amendments similar to this were tabled in Grand Committee. They had a 30-day period, rather than an 84-day period. In Grand Committee, I mentioned a 12-week period. I can now confirm that the code of practice on written consultation, which is binding on all departments, says that 12 weeks should be the standard minimum period for a consultation.
We intend to carry out a formal consultation on amendments to the employment tribunal procedure regulations and on other regulations that arise from Part 3 of the Bill. We intend the consultation document or documents to include at least a partial draft of the regulations concerned. I say "partial" because, in the document, we may want to consult on possible options. In those circumstances, it would not be sensible to draft the regulation or part of a regulation concerned until we had considered the consultation response. The consultation documents will be published on the DTI website and in hard copy form. Twelve weeks will be allowed for the consultation, in line with the code of practice that I have just mentioned.
With regard to the prescribed forms for entering an application or notice of appearance to an employment tribunal, the Employment Tribunals Service has already had informal consultation with a number of bodies such as the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission, the CBI, the TUC, the Law Society, the National Association of Citizens Advice Bureaux, the Small Business Council and so on. They will conduct further consultation in due course, and that will last at least 12 weeks. The proposed new forms will be available on the web and in hard copy form.
The amendments are, therefore, unnecessary, and I hope that, in view of what I have said, they will be withdrawn.
"DRAFT OF REGULATIONS
Not less than 84 days before—
(a) making regulations, or
(b) prescribing requirements in relation to any form or matter,
under this Part, the Secretary of State shall publish a draft of his proposals."
"The Government . . . intend to conduct a wide public consultation on drafts of the regulations to . . . ensure that the regulations achieve clarity and are comprehensive without being over-prescriptive. In particular, there will be pre-consultation with such people as the tribunal judiciary, ACAS, employer and employee organisations and employment lawyers.
"Therefore"—
this was critical from our point of view—
"those most affected by the regulations will be made aware of what we have in mind and will have ample opportunity"—
I repeat, ample opportunity—
"to comment before the regulations take effect".—[Official Report, 18/3/02; CWH 182-3.]
We were pleased about that.
"perhaps I may say that I am disappointed in the exploration of the Internet by the noble Lord, Lord Wedderburn. If he had been exploring it thoroughly, the noble Lord"—
here it comes—
"would now know that it is established DTI policy to place all consultative documents on the department's website. In fact, it is DTI policy to paste practically everything on the website".
I hope that noble Lords will have noticed that we are not quite there yet; we are moving, but we are not quite there.
"I want to ask the Minister a direct question. What he said previously and what he says now will appear in Hansard. Is he telling me that in not less than 30 days"—
that is what it seemed to be—
"he will publish a draft of his proposals for the regulations in Part 2 and Part 3 of this Bill on the web?"
The Minister, Lord Sainsbury of Turville, replied:
"The noble Lord could amend that; within 30 days, we will publish it.
I asked: "Before?" The Minister replied:
"What I can say is that all draft regulations are published, or put on the website"—
that is not an alternative, that is additional, I take it—
"for everyone to see. I cannot give an assurance on the timing of that at this point. There is a minimum of six weeks for doing that".
Later, he corrected himself—twice:
"I believe it is 12 weeks, but I can certainly give the assurance on six".—[Official Report, 18/3/02; col. CWH 186-7.]
We tabled our amendment on that basis. Naturally, we put in 12 weeks, because that is what the Minister said—12 weeks in which to publish a draft. Cannot the amendment be accepted?
"There is some discussion about the way in which that document"—
Routes to Resolution—
"was published. Many people do not have access to the Web. My understanding was that the draft regulations would be published in the way that I understand the phrase, 'being published'. That does not involve sitting at a computer; I want it in my hand. Am I going to get it at least six weeks—maybe more—before they become law? I think I am getting a yes".
The Minister replied:
"The answer is yes".—[Official Report, 18/3/02; col. CWH 187.]
4 p.m.
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