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Lord Falconer of Thoroton: My Lords, we debated an identical amendment in Grand Committee. The noble Baroness made her point forcefully and well there and has done so again today. She will forgive me if I rely on similar arguments to those which I relied on at that time.
The amendment is based on the premise that the procedures are complicated and contain obscure and minor requirements which parties of a whole range of types, which she has indicated, could easily fail to follow in full. That is simply not the case. The procedures are spare, simple and easy to understand. They represent the minimum core elements of any procedure. Some have referred to the procedures as "skeletal" or even "sub-minimal". Therefore, I believe that there is little scope for parties to misunderstand what they should do at each stage, even after a fairly swift reading. Minor slips should not occur.
Later, we shall be debating amendments regarding the sending of written communications. Those will permit parties to send either a copy or the original of any written communication which is required under the procedures. Those amendments will reduce further the possibility of minor slips arising.
The procedures are mainly drafted as a series of concrete steps. That is important because concrete steps are easy to verify if they have been undertaken. As far as possible, we have avoided references to any qualitative requirements in the procedures, which are intrinsically much more difficult to pin down. We have thereby reduced the scope for argument to arise about what the procedures require and what they entail.
It may help the noble Baroness if I say that minor and inconsequential breaches of the statutory procedures by employers would not entitle the employees to resign and claim, either in the ordinary courts or before tribunals, that they had been dismissed.
We are also concerned that the amendment would upset the simplicity of the procedures. As the noble Baroness explicitly says, it would encourage parties to debate and dispute whether failures to follow the procedures were "minor and inconsequential" or "more significant". That would in turn generate more
discussion about compliance with the procedures than the substantive issues at stake. That cannot be the right way forward to encourage legal debate about those issues.With the greatest of respect to the noble Baroness, this amendment deals with a phantom problem. It would create rancour and confusion at the workplace and it would encourage disputes before the industrial tribunal, which I know the noble Baroness does not want to occur. Therefore, with the greatest of respect to the noble Baroness, I invite her to withdraw her amendment.
Baroness Miller of Hendon: My Lords, it is most polite of the Minister to preface everything he says with "the greatest of respect" and to point out that I moved the same amendment actively and forcefully in Grand Committee. However, I would say to no effect, because the Minister has repeated exactly what he said then. I did not accept it then; had I done so I would not have tabled the amendment now.
I do not believe that the Minister was listening carefully to what I said. I did not suggest that the rules were not clear; I agreed that they were not convoluted; I agreed that most people could understand them. However, I pointed out to the Minister that, nevertheless, in filling in forms, as far as procedural error is concerned, sometimes people make errors because they do not understand. There would not be huge debate as to whether something was a minor infringement because, as I made quite clear, the tribunal would say whether it was. That would be the end of the discussion.
The Minister is nodding—I do beg the Minister's pardon, but I thought he was nodding as if to say, yes, he agreed. Now he is shaking his head in the other direction, so he clearly does not agree. However, I say to the Minister that if someone tables an amendment in the same tones, it does not mean that he or she did not listen to the answer: it means that the answer was not accepted. In my view, the Minister did not listen appropriately to the arguments.
The Minister may be 100 per cent correct, but perhaps he would like to clarify the point I made about minor and inconsequential matters. I did not understand or accept what he said. In my opinion, the matter should not be decided against one party because either party had made a minor or inconsequential error. I believe that in his last few words the Minister said that the matter would not be serious. Perhaps he would repeat what he said. Otherwise, I must say to the Minister that I do not accept his answer and we would move to a different conclusion.
Lord Falconer of Thoroton: My Lords, I speak with great diffidence because of the ruthless attack that the noble Baroness made on my previous speech. However, perhaps I may help. My point about minor and inconsequential was that in tabling the amendment the noble Baroness was urging us to let industrial tribunals decide the issues. That would inevitably generate doubt and discussion about
compliance and it would encourage disputes in the tribunal. That was unjustified by what I described as a "phantom" problem.
Baroness Miller of Hendon: My Lords, perhaps I may clarify one point with the Minister. He was so polite to me at the beginning and spoke with respect and so forth, but he then suggested that I attacked him. Most definitely I did not. However, the amendment, which deals with minor and inconsequential breaches, should not result in suffering any detriment. That was all it was about. The Minister then gave his explanation but I did not catch what he said. I ask for clarification.
Lord Falconer of Thoroton: My Lords, I said that minor and inconsequential breaches of the statutory procedures would not entitle the employees to resign and to claim either in the ordinary courts or before tribunals that they had been dismissed.
Baroness Miller of Hendon: My Lords, it is a complicated issue but this is such a minor matter that the Minister could have accepted it without any problem. I should like to test the opinion of the House.
3.32 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 130.
Addington, L.
Allenby of Megiddo, V.
Astor of Hever, L.
Avebury, L.
Beaumont of Whitley, L.
Biffen, L.
Blatch, B.
Boardman, L.
Bradshaw, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crathorne, L.
Croham, L.
Cuckney, L.
Cumberlege, B.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Elton, L.
Erroll, E.
Falkland, V.
Feldman, L.
Fookes, B.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Goschen, V.
Gray of Contin, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Howe, E.
Howe of Aberavon, L.
Jenkin of Roding, L.
Jenkins of Hillhead, L.
Kingsland, L.
Laird, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Lyell, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Rawlinson of Ewell, L.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Trumpington, B.
Vivian, L.
Waddington, L.
Walmsley, B.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Murray of Epping Forest, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Roll of Ipsden, L.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Serota, B.
Sheldon, L.
Simon, V.
Stallard, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Strange, B.
Temple-Morris, L.
Thornton, B.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Walker of Doncaster, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
3.45 p.m.
Lord McCarthy moved Amendment No. 36:
- Page 35, line 33, at end insert—
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