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Lord Bassam of Brighton: This has been a very entertaining diversion. I shall start as I mean to go on: by being rather negative about this group of amendments, I am afraid. I do not speak in absolute terms because the amendments have a positive focus and I certainly understand why they have been tabled.
The first amendment tabled by the noble Lord, Lord Hodgson, is a "may" and "shall" amendment. When I first joined your Lordships' House I heard that argument and thought, "It is plain commonsense: of course the appropriate word is 'shall' rather than 'may'". I have since heard the argument several times and it has always been explained that "may" actually means "shall" and that that is the way it rests. The noble Lord is right to anticipate that as part of my response. We do not see the need to change the wording because effectively "may" means "shall". To give absolute certainty, of course rules will be prepared, as I explained earlier. Those rules will make it clear that appellants will be able to appear in person rather than with legal representation. The tribunal could not operate without procedural rules whether or not lawyers will play a major part in the proceedings.
The noble Lord, Lord Phillips, spoke with great enthusiasm for keeping lawyers out of the business, as lawyers often do. I share that enthusiasm. I must be careful in what I say, as I live with a lawyer and occasionally I have to be subject to her obfuscation over the breakfast table and at suppertime. I certainly understand what the noble Lord is saying.
The noble Lord, Lord Borrie, is right that at the outset it was believed that tribunals would make it much easier for lay people to present their own case or story. Sadly, study and analysis of the outcome of tribunal cases tends to show that, as tribunals have developed over the years, lawyers get a better result than a lay person making a presentation of their case. That is because lawyers are very well versed in the argument. Of course some lay people are very good at presenting cases. When I was a law centre worker I thought that as lay people we were quite good at making presentations on behalf of ordinary folk.
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The spirit of the amendment is that the rules must be plain, clear, understandable and accessible. I shall give an undertaking today that I hope we can stick to. I wish to ensure that all noble Lords who expressed an interest in helping draft the rules so that they fit that rubric can be involved in the consultation process. It would be very valuable. It has been very helpful to read the stab by the noble Lord, Lord Swinfen, at writing the rules into the Bill. It will provide us with interesting thoughts and guidance on where we should go with the rules.
The noble Lord, Lord Phillips of Sudbury, seeks in his amendment to ensure that the rules are "user-friendly". I do not think that I have seen that expression written into legislation previously; it would certainly be novel and unusual. I can reassure the noble Lord that we intend that they should be user-friendly. As part of that, we are committed to issuing a plain English guide so that the rules are available and accessible to people who want to understand them better. The draft of the rules is about to be prepared, and a plain English guide will explain them, I hope, with the sort of clarity that we have come to expect from such guides.
I agree with the spirit of the amendments tabled by the noble Lord, Lord Swinfen. It must be a general principle of the tribunals system that a tribunal provides a quick and cheap mechanism of appeal without the need for legal representation, as we have all sought to establish. In establishing the tribunal so that appellants will not have to go through the slow, expensive and legalistic environment of the court, it must be a given that it will have to operate fairly and along the lines of sound natural justice.
The underlying principles to which the noble Lord's amendment refers at paragraphs (a) and (d) will be specifically dealt with in the procedural rules. The Lord Chancellor will appoint the legal and ordinary members of the tribunal from panels selected to ensure that members have the right qualifications so that there is a balance of lay people and those with professional expertise that is appropriate to how it is envisaged the tribunal will work. Further, we certainly want to see in place people with experience in dealing with charity law and those well versed in the charity world.
In preparing the draft rules, we will seek to ensure that the points raised by the noble Lord are considered. I have made it clear that the rules will be subject to consultation and I am more than happy to give a commitment to ensure that those noble Lords who have taken part in this debate are specifically included in the exercise.
I am grateful to all noble Lords who have spoken to this group of amendments. They have provided a useful focus for our debate on the way in which the tribunal is to operate, its rules and its membership. With that response, I hope that the noble Lord, Lord Hodgson, will feel able to withdraw his amendment.
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5.45 p.m.
Lord Shutt of Greetland: When the Minister referred to the "plain English guide", is that to be the only guide or will it direct the reader to a more complicated one, which will be the real one for those who want to get really excited about these matters?
Lord Bassam of Brighton: My understanding is that there will be just one guide, written in plain English.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister and to my noble friend Lord Swinfen for his supportive comments on the merits of "may" and "shall".
I should like to put one question to the Minister. Under subsection (4) on page 8, listing the areas where the Lord Chancellor "may, in particular"—I would prefer "shall, in particular"—"make provision", is it a requirement that every one of those areas is covered? For example, paragraph (e) covers the,
Lord Bassam of Brighton: The answer is that these areas are not requirements but in practice they will be covered.
Lord Swinfen: To be quite honest, I do not think that that is good enough. The requirement to make provision should be in the Bill by using "shall" rather than "may". To respond by saying that something is not a requirement but that in practice it will be done means that any future government could ignore it. That is not what the Minister has implied in his answer and therefore he should accept my noble friend's amendment.
Lord Bassam of Brighton: As I have explained, I do not think that it is necessary to accept the amendment. However, I would like Members of the Committee to accept my undertaking that these matters will be covered because that is certainly the intention. As I read the areas listed in subsection (4), it would not make much sense if they were not. In practice that is exactly what will happen: these matters will be covered.
Lord Hodgson of Astley Abbotts: This is where the Minister's horse is shot from under him. While he asserts that "may" and "shall" are the same because "may" has the same effect, on further and closer examination the word "may" is used because some of these circumstances could be left out. It is obvious that we cannot take this much further today, but where a list of areas is set out to be included in rules and the Minister tells the Committee that they are to be covered, they should be covered. Otherwise why should they be listed? I do not say that the Minister or this Government would necessarily drop or leave out any of these areas, but a future government might seek to do so. Given that, the position needs to be made clear.
Lord Bassam of Brighton: To be helpful, the noble Lord is beginning to persuade me. I have listened to what
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he has said and, in order to conclude this debate because we need to move on, I shall give the point further consideration.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that response and to those noble Lords who have supported me in this debate. I thought that the comments of the noble Lord, Lord Phillips, about the danger of setting the precedent of employment tribunals were powerful.
The only other thing I want to say is that I thought the Minister was extraordinarily brave to suggest that conversations with his partner over breakfast or supper include obfuscation. I just hope that she does not read Hansard.
Lord Phillips of Sudbury: I can assure noble Lords that she will read Hansard.
Amendment, by leave, withdrawn.
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