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Lord Wedderburn of Charlton: I understand what my noble friend says, but we have already established that consent will include deemed consent. I suggest that our worries about that are added to our worries
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Lord Bach: I am sorry to interrupt my noble friend again, but he raises an important point. As I understand it, in the normal course, a single-chairman hearing will be in the presence of the claimant and the respondent. If the consent that was thought to be deemed is not existent, all the claimant has to do is to say to the chairman, “I don't agree with you hearing this on your own; I want to have the tripartite system”. The deemed consent would only bring the claimant to the tribunal, but if he were then to make it clear that he was not happy—as no doubt he would if he were unhappy and he was not giving his consent—no hearing would take place until there were lay members and the chairman.
Lord Wedderburn of Charlton: I am not sure that we are not going from Alice’s Adventures in Wonderland to Through the Looking-Glass. What a lot of time that will waste. We have the tribunal, a letter has been sent or some step has been taken and the worker is deemed to consent to what we now have to call a “qualified chairman alone”, but just when we have everyone together for the hearing and the determination, the worker pops up and says, “No, no, my deemed consent is all wrong”. Then they have to get three members of the tribunal together to hear it, no doubt on a different date because employment tribunals have a lot of work. Sometimes it is difficult to find a date, as I am sure the noble Baroness, Lady Gardner of Parkes, would agree.
Lord Bach: I have misled the Committee—and I apologise particularly to my noble friend for innocently doing so. If there is consent or deemed consent, the hearing would be by the chairman on the basis of the papers that he had in front of him. I have to make that absolutely clear. I apologise to my noble friend for having got that wrong. I needed to say so at the earliest moment.
Lord Wedderburn of Charlton: I am grateful to my noble friend, but we are definitely now in Alice Through the Looking-Glass. Things get worse and worse. The more that we prod on this, the more we justify the grave concerns of the association of lay members of tribunals, which we heard earlier this afternoon. Despite the way in which the Bill does not prescribe it, we thought that this fast-track procedure would be very limited in character. I shall not try to repeat it in case I get it wrong—I shall read it in Hansard—but I believe when Members of the Committee read what my noble friend has just said they will find that the possibilities of single-chairman hearings will become very extensive indeed. That was the worry that we always had about Clause 4.
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I take everything that has been said about consent, but we have not made much progress on that matter. We only got an undertaking to look again at written consent, and there is insistence that it will include deemed consent, which is a concept that I find quite repugnant, no matter what advice people have had. Now we are told that when there is deemed consent, the worker cannot pop up at the hearing with the judge alone. He does not have his day in court, as my noble friend Lady Turner said on a previous occasion. If that really is the situation, I shall find it very difficult to lend my support to the Bill with that width of fast-track procedure. As I said, I could not write down all the jurisdictions that it will apply to. I thought there were five but, if there are only five, that should be in the Bill.
If the provision is going to be limited to those five jurisdictions, why are the Government so coy about telling us that in the Bill? I hope that my noble friend can give us some reassurance about that list of jurisdictions this afternoon, because he must know the Government’s intention. Do they intend that it applies to breach of contract, national minimum wage and three other jurisdictions that I think I could specify but cannot do so confidently because I did not write them down?
Will my noble friend tell us that he will go away and reconsider the wording of Clause 4 and written consent, as he said he would? Will he consider new subsection (3AA)(b) to make it clear that the Government include deemed consent? We do not like that, but if it is going to be in the Bill, it had better be stated. Will he also consider whether it would be right for Parliament to say that you cannot have a proper employment tribunal but only a one-person decision if you have deemed consent to this matter? What is he going to say to the association of lay members of tribunals when it says—as it has said—that it is very concerned that the whole nature of employment tribunal justice is going to change? I do not say that the association is absolutely right in its concerns, but it has a very good case, much stronger than before we considered the Bill this afternoon. It is very worrying indeed.
I have to admit that the argument has taken such twists and turns that I am not sure where I am. I think that I am on Amendment No. 15, which the Minister has shown could not possibly be accepted by the Government. He has shown that it raises enormous problems, which I had no idea existed when we first came to the Bill today. I suppose that the correct step for me to take is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 pm
Lord Henley: Before the Deputy Chairman calls Amendment No. 16, may I ask the Government about their plans for timing. My noble friend Lord Hunt of Wirral has been waiting for some time for his amendment. Obviously, we will not get to that today, so can I take it that we take just Amendment No. 16 and then draw stumps? I say that, not knowing how
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Lord Bach: I think that my response to my noble friend’s amendment will please him. Whether it does please him or not, I no longer feel confident in being able to say. It would please me.
Lord Wedderburn of Charlton: However much my noble friend offers us crumbs, or the whole loaf, Amendment No. 16 will require quite a period of discussion, if only because it is technically deficient. I am sure that he would make that point against it. However, its meaning is extremely important and reflects many of the debates we have already had. If it is the wish of Members of the Committee that I should move Amendment No. 16, I am very happy to do so, but I think that it will take us far beyond the hour that Grand Committee normally sits. I do not know what the noble Lord, Lord Henley thinks of that position.
Lord Razzall: I certainly support the noble Lord, Lord Henley. If the Government side were to study the proposers of the amendments that will take place later, if their concern is that we will not get through in the second day, they might conclude that their concern would be unfounded even if we were to close—or draw stumps.
Lord Henley: I genuinely think that we have made good progress, although the noble Lord might say that we have not. The noble Lord, Lord Razzall, is saying that he is fairly sure we will probably finish on the second day. This Bill was originally put down for three days. We are making good progress and it seems to be the general view of the Committee—I am waiting to hear from the Government—that this might be the right time to stop.
Lord Bach: I do not think that it is the right time to stop, with the greatest respect. We should deal with the next amendment. I am very sorry, but I do not think that there will be time for the Committee to hear the amendment in the name of the noble Lord, Lord Hunt of Wirral. I know that he has waited very patiently all day for that. The next amendment should be heard. It is not twenty minutes past seven yet. We should hear this amendment and then adjourn.
Lord Wedderburn of Charlton moved Amendment No. 16:
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Where a chairman or other member of an employment tribunal engages in mediation in relation to a claim made to the tribunal and that mediation fails to reach agreement between the parties, he shall not sit in respect of further proceedings in that matter (including any preliminary hearing) and the claim shall be determined by a tribunal fully constituted to hold a hearing in the proceedings.””
The noble Lord said: The amendment, which I am obliged to move, is about the position of mediation in the proceedings of an employment tribunal. First, mediation is not the same as conciliation. Looking around the Committee, I am quite sure that everyone is sufficiently experienced to understand that. Mediation means that the mediator advances solutions to the parties. Therefore, the intention is that mediation should in future be undertaken by any member of the tribunal who is assigned the possibility of that process in the regulations.
The amendment is technically deficient because the job of being a mediator has already been assigned to any member of the employment tribunal by paragraph 42 of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. That paragraph inserts a new section in the Employment Rights Act 1996, Section 7B, “Mediation”. It states that any member of the tribunal can act as a mediator in disputes where the case is the subject of proceedings. If Members of the Committee consider where we have got to, an employee or worker brings a claim to the tribunal and, instead of the tribunal all acting in the required judicial capacity, one of them acts as a mediator, necessarily taking sides about what is, or is not, the superior argument and solution to the dispute.
Amendment No. 16 ought therefore to require an amendment of Section 7B of the Employment Rights Act 1996. Members of the Committee may ask how on earth that new section was placed in that Act. Simply, it was put there in your Lordships’ House, without argument or debate, promoted by the Ministry of Justice, which frankly has little knowledge of the realities of employment tribunals. It has made it a requirement that a member of the tribunal—and it is spelt out that it could be the chairman or any other member—should act as a mediator when judicial proceedings have been brought before the tribunal. The only qualification that makes any more sense of this mistaken proposal is that regulations on this point, and this point alone, must be made after consultation with ACAS. Suddenly, the Tribunals, Courts and Enforcement Act brings in ACAS.
It was said to me when I was considering this deep problem, that that paragraph in the schedule is a follow up to Section 24 of the 2007 Act on mediation. That is quite true, but it makes a particular provision about employment tribunals:
“Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings”.
The final twist in the skein is made by Section 7B(3), which states that once a member has begun to act as a mediator in relation to a disputed matter in a case that is subject to proceedings, the member may decide matters in the case only with the consent of the parties. The difference between that and Amendment
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Lord Henley: I declare an interest as, like my noble friend Lord Hunt of Wirral, who declared his interest on Second Reading, I am a mediator accredited by the Centre for Effective Dispute Resolution, also known as CEDR. It seems to me that what the noble Lord is saying is eminently sensible. I fail to see how someone who has mediated in any dispute can later be part of a judicial process that arises from it. In fact, one of the first things that we were taught in the excellent course arranged by CEDR was to explain that anything that you heard at a mediation was entirely private, it would not be passed on or made use of in any way whatever and everything was, as they put it, entirely without prejudice. The thought that a member of a tribunal could mediate and later be on the tribunal seems bizarre.
Lord Wedderburn of Charlton: Even with the consent of the parties, it should surely not be proper.
Lord Henley: I agree that even with the consent of the parties it seems to make nonsense of the whole idea of mediation and leaves him in this quasi-judicial capacity, having said at the mediation that anything that he heard at that mediation would, as it were, be erased from his mind and excluded from any further consideration. No doubt we will give the Minister a little time to ponder these matters between now and the next stage. The noble Lord, Lord Wedderburn, says that he will certainly bring this back on Report, and there might be other ways of discussing it again in Committee, since we are being curtailed in the amount of time that we can have on it this evening. In the mean time, we ought to listen to what the Minister has to say, and I leave it to the noble Lord, Lord Wedderburn, on how he wishes to proceed.
Lord Bach: I am grateful to my noble friend for raising this issue. The amendment seeks to prevent a tribunal member who has been involved in an unsuccessful attempt to mediate a case from sitting on the tribunal panel which subsequently decides the outcome. The Government believe that this amendment is unnecessary. The Tribunals Service is presently trialling judicial mediation of employment disputes that would otherwise become the subject of an employment tribunal hearing. That trial will be carefully evaluated before any decision is made on whether to continue this activity. In the trial, no judge who has been involved in mediation is then able to play any part in the determination of the case should mediation not succeed.
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7.30 pm
As recently as last year, Parliament enacted measures that will in effect prevent that from happening in the future. Schedule 8 to the Tribunals, Courts and Enforcement Act 2007 amends the Employment Tribunals Act 1996 to provide:
“Once a member has begun to act as a mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties”.
In a case where mediation was unsuccessful, if it was thought by one party or another that the mediator was unsympathetic to their case or their cause, of course that party would not grant consent to the mediator then being part of the panel. In effect, the consent of the parties is a crucial safeguard that a mediator is not likely to become a member of the panel. We think that that pretty well answers the point and I invite my noble friend to withdraw his amendment.
Lord Wedderburn of Charlton: I am not persuaded. I asked the noble Lord, Lord Henley, a question with due consideration. To act in a judicial capacity is totally different from acting as a mediator. Once you have acted as a mediator, you have taken positions on the arguments. It is incomprehensible to me to understand why the Government would resist, as I have suggested—I would redraft, of course—an amendment to the Tribunals, Courts and Enforcement Act 2007.
I said earlier today that that Act was put forward by the Ministry of Justice without adequate knowledge of employment tribunal matters. It now turns out that the department put it forward without understanding the most basic rule of justice: someone who is to act in a judicial capacity should not have acted in the case before, hearing, as the noble Lord said, matters in private and taking positions. The position is not even as a conciliator, it is as a mediator. The two are totally opposed in their conceptual categories.
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The consent of the parties is neither here nor there. Even if the Bill referred to the consent of the parties after qualified advice, I would oppose it, but it does not even say that. They just have to say, “Oh, all right. Get on with it. We know you have acted as a mediator”. They may not understand the arguments at all. I would very much like the Committee to adjourn and consider the matter when we come back, if that is allowed. But if my noble friend opposes that, I shall have no alternative but to beg leave to withdraw the amendment. But I would ask the Government to think about this again. Would they throw aside what I believe has the broad support of the Committee? Would the Minister perhaps go as far as one single crumb of comfort and say, “Yes, we will have another look at it, even though paragraph 42 of Schedule 8 to that curious statute of 2007 says that it should work in this way”? I do not know whether my noble friend can give us any comfort on the matter or whether the Government will dig in their heels on the most fundamental issue of normal British justice; not just British justice, but I do not know of a writing anywhere in the world that would suggest that a judge could act as a mediator in private before proceedings begin. If my noble friend cannot offer any crumb at all, this obviously is something to which the House will have to come back on Report. It is the most extraordinary twist and turn in regard to employment tribunals that I have ever imagined. I had no idea earlier today that we would reach this point. In order not to delay Members of the Committee far beyond the point where we should have stopped, all I can do now is beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: The Committee stands adjourned until Monday 25 February at 3.30 pm.
- The Committee adjourned at 7.35 pm.
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