Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Laird: I totally accept what the Minister said; I expected that response. I simply make the point as an
 
27 Oct 2004 : Column 1378
 
Ulster Unionist that it seems to me that for us in Northern Ireland to be out of step with the rest of the United Kingdom is not an admirable situation. I do not care about the difficulties of whether foxes have read the legislation, as my noble friend Lord Maginnis of Drumglass said. It is an issue of principle: one cannot commit cruelty to animals on the basis of a sport. It does not matter whether that occurs in Northern Ireland, in Wales or in England; it is wrong.

I say to the noble Lord, Lord Brooke, that it is possible to have "crack" in Northern Ireland without being cruel to animals. I have "crack" in Northern Ireland—I do not refer to the drug but to excitement, fun and banter—on a regular basis, but that does not involve indulging in blood lust against small animals. That cannot be right, whether it is here or in Northern Ireland. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Baroness Farrington of Ribbleton: I beg to move that the House do now resume. In moving the Motion, it might help Members of the Committee if I pointed out that Amendments Nos. 82 to 85 were de-grouped, so will come with the remainder of the amendments tomorrow morning.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

Lord Borrie rose to move, That an Humble Address be presented to Her Majesty praying that the order, laid before the House on 20 July, be annulled (S.I. 2004/1861).

The noble Lord said: My Lords, I have prayed against the regulations because the House should consider the background to and consequences of Regulation 17, which removes from the public record all information about applications made to an employment tribunal. Regulation 17 requires that only judgments should be on public record. Whatever reasons may have influenced the Government's thinking, that regulation is not some minor administrative detail, as it undermines our system of open justice.

I have a special interest in the matter, because I promoted the Public Interest Disclosure Act 1998 in this House. I am particularly concerned that the purposes and operation of that Act, which are to protect from reprisal employees who blow the whistle in the public interest, will be thwarted if this departure from our system of open justice applies to applications made under it. It is common ground that the
 
27 Oct 2004 : Column 1379
 
implications for the Act are an important and distinct issue. When the DTI announced the abolition of the register of applications in July this year, it stated at paragraph 53:

As a patron of Public Concern at Work, often known as the whistleblowers' charity, I hope that the Minister will be able to tell the House that applications under the Act will not be kept from the public record and will be subject to a separate regime.

When the Public Interest Disclosure Act was considered by the House, the legal position, as established by the High Court not long afterwards, was that applications made under it were public documents available on the employment tribunal register. That is important for at least two reasons. First, it meant that it was possible for the charity or anyone else to monitor and research how the Act was used. Relevant information would include: whether the alleged wrongdoing was fraud, danger to the public or abuse of persons in care; whether the disclosure had been made to the employer or outside; and whether the reprisal against the employee was dismissal or something less. With such information on the public record, this House and others were able to discuss how the Act was working and whether some amendment might be warranted.

Secondly, because the information was on public record, it removed or greatly reduced the risk that an employer and employee might trade the public interest for private gain. Let us suppose that an employee was dismissed in breach of the Public Interest Disclosure Act for blowing the whistle to his employer regarding a developing financial scandal. If he brought a claim under the Act, which the parties then settled, that concern regarding the developing financial scandal would be on the public record. That would mean that, even if the claim was settled, the employer would still have every reason to address, and be able to show that he had addressed, the alleged wrongdoing. Importantly, that also meant that there would be scant temptation for either party to try to settle the claim for a premium, on the basis that the financial scandal would remain undetected, allowing the employer to avoid the cost of remedying it and/or of any penalty that regulatory authorities might justifiably impose.

That was the position when the House debated and passed the Public Interest Disclosure Act six years ago. The public record allowed the use of the Act to be monitored and, more importantly, it provided the framework within which the Act's approach to employee responsibility, organisational accountability and the public interest would work. Today, that is no longer the case. Yet, this is the first time that this House has had an opportunity to hear the Government's thinking. In my view, even if there is no longer a public record of applications in general employment claims, I trust that the Government will
 
27 Oct 2004 : Column 1380
 
agree that a separate scheme is required for public interest disclosure cases. The public interest requires nothing less.

Perhaps I may quote statements made by my noble friend Lord Sainsbury of Turville, the relevant Minister, three years ago. On 3 July 2001 he wrote to Public Concern at Work:

The Minister then referred to a judgment of the High Court, in a case brought by Public Concern at Work in April 2000. He quoted Mr Justice Jackson as saying,

When the Minister wrote those remarks, it is important to emphasise that he, like the High Court, was referring to all employment tribunal applications, not just those brought under the 1998 Act where the public interest arguments on openness are much greater.

I should make clear that these remarks were made when the Minister was explaining why the department had, contrary to express assurances given to Public Concern at Work, rushed through temporary regulations in the summer of 2000 to remove the right of the public to access employment tribunal applications. The Minister explained that in the months since the High Court ruling it had not been possible for the department to resolve its concerns over data protection, the right to privacy and the implications for the conciliation process.

Since then, officials have been considering and consulting on how to take this issue forward. Rather than negotiating a careful path, as the Minister said,

Regulation 17, the regulations before us today, headed off into the undergrowth where the privacy of individuals would take absolute precedence over any and every other public interest. That departure from the path, which had, after all, been set out by the Minister himself, has particularly serious implications for monitoring the Public Interest Disclosure Act.

I have tried to understand how the department has come to this position and I am at a loss. Much of the history is being investigated by the Parliamentary Ombudsman and I would prefer that we had her report before us. Indeed, I would far rather the department had considered her report before wandering further off into the undergrowth and bringing in Regulation 17. Be that as it may, it seems clear to me that the process by which this policy was produced is, I am afraid, littered with mistakes, misunderstanding and misrepresentation.

The main mistake officials made was the unilateral decision in July 2000 for the first time to put on the register the addresses of the parties. This they did without consulting any of the relevant interests and
 
27 Oct 2004 : Column 1381
 
ignoring advice that such a move would facilitate the activities of ambulance chasers and others and increase unsolicited and unwanted approaches being made to the parties. In the past three years, ambulance chasing in the employment field has exploded and become a pressing problem. While this problem, which is entirely of the department's own making, could be easily remedied by removing the addresses from the register, it is the primary reason now put forward for abolishing altogether the register of tribunal applications.

The misunderstandings have been many but I shall mention two concerns which lured officials away from the well trodden path of open justice. First, they took the view that conciliation would be prejudiced if tribunal claims were on the public record. In doing so, they seemed to have no regard whatever to the long and extensive experience of the higher courts of open justice where there is no evidence of any such effect. Secondly, the officials wrongly assumed that the Data Protection Act in some way prohibited Parliament from legislating on this issue, a point which I believe they now accept is erroneous.

The misrepresentations, too, have been several. The consultation paper that preceded these regulations was written in ignorance or defiance of the Minister's acceptance of, to quote from the statement made by the noble Lord, Lord Sainsbury,

No such reference is hinted at in the DTI paper. The principle of open justice is not mentioned and the High Court's decision on this very matter does not even merit a footnote.

Furthermore, the DTI's public statements imply that it is only the charity, Public Concern at Work, which believes that information about these claims should be on the public register. Yet over the four years, this has been a policy which the DTI knows had been publicly supported by many others including the CBI, the TUC, the Institute of Directors and the Council of Employment Tribunal Members.

Having looked at how the Government have come to this policy position, I think it is fair to say that officials, having lost or discarded the map which the Minister had given them, felt they had no option but to make things up as they went along. That is not a charge easy to make and it is a troubling charge for Ministers to consider. But let us briefly revisit the three issues which he said the department needed to weigh against open justice to find the right way forward: data protection, risk to conciliation and infringement of privacy.

It is agreed that data protection is no longer an issue. As to conciliation, this is not cited in the Government's response as a reason for rejecting the public interest of open justice. On people's privacy, as I have said, this has been widely infringed by the department's insistence on putting private addresses on the register in 2000.
 
27 Oct 2004 : Column 1382
 

There is however one new reason on which the department now relies and this, too, I should mention. It is now claimed there is a concern that the register is used for blacklisting employees. No one approached by Public Concern at Work has been able to provide any tangible evidence of such misuse and none was given in any of the responses to the DTI's consultation. I hope that the Minister can confirm that this is not a case of public policy being built on some unsubstantiated rumour and that he can provide details of such instances, if there are any, to the House.

For the reasons I have given, I hope that the Minister will agree that the policy underlying Regulation 17 is badly flawed and indeed that the process by which it was arrived at was also badly flawed. Had officials heeded the words of the noble Lord, Lord Sainsbury, about keeping to the careful path between public interest in access to tribunal applications and individual privacy, a good deal less time would have been wasted and less damage caused.

If what I say tonight causes officials or Ministers to recognise and address the problems, I shall be delighted. Of course, I have no wish to vote against these regulations this evening as they contain many worthwhile provisions.

Perhaps I may end as I started with the two points about the Public Interest Disclosure Act. The first was the need for this House and others to know how the Act is operating in practice. I hope that the Minister can confirm that the Government will give a positive welcome and every support to any application that Public Concern at Work may make to the Employment Tribunals Service to enable it to monitor the Act and to brief this House and the public accordingly.

As to the second, I hope that the Minister will confirm tonight that the Government agree that information about public interest disclosure cases will come under a different regime. By placing both claims and responses on the public record, people will be able to see how the Act is being used and, if it be so, abused. For us to fail to do that would be to fail the public interest.

Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 20th July, be annulled (S.I. 2004/1861).—(Lord Borrie.)


Next Section Back to Table of Contents Lords Hansard Home Page