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I recognise the genuine concern which has given rise to the amendment tabled by my noble friend Lord Borrie and the attempt which has been made to limit the negative effects which I referred to when we discussed his amendment on the same issue in Grand Committee. Although I acknowledge the spirit of compromise to which the noble Baroness, Lady Wilcox, just referred, I feel that similar difficulties to those that were aired in Grand Committee still arise from this changed amendment. The current amendment proposes—and this is not a provision of the Civil Procedure Rules—that basic details, including names of parties, would be placed on a register and published within 28 days of the claim being received. It also seeks to import Civil Procedure Rule 5.4C, which provides that persons who are not a party to the case may obtain from the court a copy of the statement of case, although the court must consider rejecting or restricting the application if a party named on the statement of case requests it. Rule 5.4C also allows persons who are not parties to apply for permission to obtain copies of other documents from the proceedings. That might include witness statements, financial records or accounts. It would include seriously confidential information.

I understand the genuine concern that has been expressed by Public Concern at Work, which campaigns on behalf of whistleblowers; that is, that the unlawful, fraudulent or dangerous behaviour that underlies genuine public interest disclosure claims should be tackled. I find that very encouraging, but I remain concerned, as do the Government, about the consequences that would follow if this amendment were implemented. We must look at the possible impact on parties whose details are published but against whom nothing has been proven. We cannot go down a road where material could be released on application which included unsubstantiated allegations. The fact that this material would be released only to non-parties who sought it does not remove the risk of unsubstantiated allegations being reported in the press, with serious consequences for the reputation of the firms concerned. As we know, the impression and perception created by the first publication in the press is always so much more effective than any retraction or statement to the contrary at a later date. That is true even when the party against whom the allegations are made has submitted a defence to the claim under the public interest disclosure legislation, because both the claim and the defence will relate to the alleged detriment to the claimant, not to the alleged underlying behaviour, be it fraud, unsafe working conditions or whatever.

My right honourable friend in another place, Pat McFadden, met representatives of PCaW in February, and officials from the Department for Business, Enterprise and Regulatory Reform held a further meeting with them and representatives of the CBI and the EEF in April. All efforts have been made to understand and discuss the issues, but the fundamental objections to releasing unproven allegations into the public domain

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remains. Both the CBI and the EEF, while not condoning abusive or fraudulent behaviour by companies, oppose this amendment.

I know my noble friend Lord Borrie was not seeking to be alarmist but he mentioned Northern Rock as one of the examples. We are all blessed with PhDs in hindsight. Given the current financial situation around the world, whether banks survive or not will depend largely on public confidence. One can just imagine some time ago there having been an enormous attack on the confidence of the whole financial system of the United Kingdom and beyond as a result of what this amendment proposes having taken root.

I am very pleased that my noble friend Lady Turner recited her involvement and that of many trade unions in ensuring that whistleblowers obtained protection in the past. They have to have protection; otherwise, why would they do it? However, I am sure that noble Lords will agree that that protection brings with it a sense of responsibility. Too often, that protection is not used responsibly. If this amendment were implemented, we would find that press allegations often appeared that were detrimental to business and the employer, and which were not substantiated at that point in time—if they have been substantiated, that is an entirely different issue. I suspect that we would enter a bureaucratic and nightmare of time-delay where every application for papers would be opposed on those grounds. It is surely not in the interests of anybody if all that we are going to do is bring in another tier of delay and expense. I trust that my noble friend Lord Borrie will be prepared on that basis alone to withdraw his amendment.

5 pm

Lord Borrie: My Lords, I am most grateful to my noble friend Lady Turner—and, if he had been here, no doubt my noble friend Lord Wedderburn—for supporting my revised amendment. I am grateful, too, for the support of the noble Baroness, Lady Wilcox, on behalf of the Conservative Opposition, and of the noble Lord, Lord Razzall, for the Liberal Democrats.

Despite that widespread support from all sides, the response of my noble friend Lord Jones of Birmingham was extremely disappointing and to some extent rather astonishing. He knows, as I do, that there are published all sorts of allegations about individuals and firms, in terms of their being charged with fraud or accused of something, which are later disposed of in a negative way, with it all seeming in hindsight rather unfair that the allegations were made public. But that is part of the price we pay for open justice. It is astonishing that the noble Lord should say, by the pure chance that wrongful dismissal cases are brought in employment tribunals rather than in the ordinary High Court, that the civil procedure rules that I wanted to transplant into the employment tribunal field should not be allowed.

I remind the Minister that the purpose of the Public Interest Disclosure Act was not just to give a private remedy to a private individual who was wrongfully dismissed for blowing the whistle on some wrongdoing, or alleged wrongdoing, at his place of work; it was designed to support the public interest, to deter

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wrongdoing in future and to ensure that wrongdoing was not hidden from public sight. The DTI—it was long before, I accept, my noble friend’s time at the new department—introduced regulations to stop any publicity except in the circumstance of a final tribunal determination. That seemed to go completely against the purpose of the Public Interest Disclosure Act, which was to bring things out, preferably via the employer or a regulator rather than via the press, to ensure that the employer would do something about it.

Unfortunately, if things can be hushed up and a settlement made without any public understanding of what is going on, then the wrongdoing may continue; there is far less of a deterrent against wrongdoing being attacked, criticised and dealt with. Unfortunately the employer may not feel a need, because sometimes it is easier to shoot the messenger—the whistleblower—than to deal with those initiating the wrongdoing in the first place.

I have to say to my noble friend the Minister—he will forgive me, I hope, for putting it strongly; we have known one another for many years—that I am very disappointed with his answer. I shall have to discuss with my advisers what to do before Third Reading. Of course I beg leave to withdraw my amendment, but I do so with great reluctance.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 10:

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 11 to 13. I am very grateful to my noble friend Lord Campbell of Alloway for his support in putting his name to the amendments.

We return here to the whole question of mediation and conciliation and to the generic subject of alternative dispute resolution. The proposed new clause in my amendment states clearly that the ACAS code of practice should refer to what is described as,

in appropriate cases. There will be guidance in the code of practice on what constitutes an appropriate case.

I am grateful for the support that I have received on this from many noble Lords. I feel so strongly about it not just because I am a Centre for Effective Dispute Resolution-accredited mediator but also because, as a partner in a national commercial firm of solicitors, Beachcroft LLP, I have become aware of the tendency in what some people describe as a damages or compensation culture, whether perceived or real, for

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lawyers to be involved at an early stage and to escalate a dispute, making it even more difficult to reach a proper resolution of the problems that have arisen. Although this did not really enter into employment tribunal cases historically, I am given to understand that there is now much more of a tendency for employment tribunals to become a battleground where disputes are taken that should have been settled at a much earlier stage and where the parties involved have not had an opportunity of talking through the situation in the way that this new clause stresses is so important.

Amendments Nos. 11, 12 and 13 proceed to refer to conciliation and mediation as well. Both are forms of alternative dispute resolution. I am seeking in these amendments to identify and facilitate ways in which employers and their employees can settle issues between them early on before any battle lines are drawn up and before, as all too often happens, irrevocable decisions and positions are taken.

There is a difference between conciliation and mediation. ACAS, with all its experience, identifies that on its website, where it describes conciliation as where an independent conciliator discusses the issues that have arisen in an employment tribunal claim,

The term conciliation is used when an employee,

It is therefore different from mediation. Rightly, the ACAS website describes mediation as,

They are there to facilitate the parties to reach their own agreement, which as a result is much longer lasting and satisfactory. The whole focus is on going forward to establish a continuing relationship between the parties, rather than on going back and being judgmental about what has or has not gone wrong.

In 80 per cent of mediations a settlement is reached, as is clearly laid out on the ACAS website. Agreements are not legally binding. In fact, as my noble friend Lord Henley, who is also a fully accredited mediator, will testify, often no settlement is reached. The mediation has not failed, however, because often a settlement will result in the weeks following, as the parties suddenly begin to realise its importance. Therefore, the mediator’s job is not to achieve a settlement but merely to enable both parties to try to reach accommodation themselves. Therefore, settlements are not legally binding, although they can be given legal force if an ACAS conciliator becomes involved—but not unless that occurs.

The other issue is equally important. With mediation being a private process, can ACAS under the existing legislation involve outside mediators? There is a whole range of expertise in the employment arena, with highly professional people who could assist ACAS. Of course, ACAS will need additional resources to enable it to fulfil all those functions. But if it is to fulfil them,

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I would hope that we would see the number of disputes diminish and an increasing number settled amicably. I beg to move.

Lord Campbell of Alloway: My Lords, I support my noble friend, for all the reasons that he has given. I have a word of gratitude for the Minister for having taken note of this matter in Grand Committee. Because of his past experience, I hope that he will understand, inevitably, the tremendous importance and distinction of mediation, which keeps parties going on together, rather than a form of conciliation, which tends to lay them apart. If we can go forward, in principle, with these amendments, it will be a very good thing.

Lord Henley: My Lords, I offer my support to my noble friend Lord Hunt for his amendment. I declare an interest as a CEDR-credited mediator, a route which I went down following the advice of my noble friend, who suggested that it was something that I might be interested in doing. Whether I am any good as a mediator is another matter—but certainly it is a very useful process and one that protects a large number of people from the potential later ravages of lawyers.

I support my noble friend’s amendment and hope that the Government can give it a sympathetic response.

5.15 pm

Lord Jones of Birmingham: My Lords, the amendments of the noble Lord, Lord Hunt, propose a range of measures to promote greater use of conciliation and mediation in the early stages of an employment dispute. I personally thank him for giving oxygen and an airing to the whole issue. The more people in all walks of life—people who might come before a tribunal—are aware of the facility available, the more efficient, quick, cheap and understandable the process will be. I am sure that we all agree with the sentiment behind the amendments even if we do not feel that it is appropriate in this case.

The Government firmly believe that more disputes could benefit from early mediation and conciliation because the problems will be resolved at the earliest opportunity. We announced on 6 February that we intend to invest significant additional resources in ACAS’s pre-claim activities to make this service more widely available. We are also investing significantly in improving the ACAS helpline so that more people are able to benefit from advice on the options available for resolving employment disputes. The noble Lord, Lord Hunt, asked whether it is possible for ACAS to draw on outside parties to facilitate and complement that. I will get back to him on that.

The noble Lords, Lord Hunt and Lord Henley, come from a profession where I spent 20 years. When I was an articled clerk, one of my first principals had a sign above his desk saying: “Settle out of court? Where’s the fun in that?”. I hope those days are over.

As I said in Grand Committee, we believe that the parties should choose the ways that make most sense to them in resolving their dispute. We believe that mediation by private providers can play a crucial role

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and intend to promote its benefits effectively and systematically. However, we believe that these amendments are unnecessary in the light of the measures that are already in place or that we are now proposing. Perhaps I may explain that. I shall consider each amendment in turn, starting with Amendment No. 11.

The first two elements of Amendment No. 11 would include mediation within the heading of the section specified of the Employment Tribunals Act 1996, and insert into subsection (2) that a conciliation officer may use mediation or conciliation when endeavouring to promote a settlement, before proceedings are instituted. Mediation and conciliation are both elastic terms with disagreement among practitioners about what each means in practice. ACAS uses a variety of techniques, including telephone discussion and face-to-face discussion, in seeking to resolve disputes at the early stage. I do not believe that including both these terms in the legislation would have any practical impact. The existing legislation already enables ACAS to use a variety of techniques to resolve disputes. The amendment changes nothing.

The third element of Amendment No. 11 seeks to insert a provision that ACAS conciliation officers may engage outside mediators to assist in the settlement of proceedings. Nothing now prevents conciliation officers suggesting to parties that the help of outside mediators could be worth while. That is done in individual cases every day. ACAS would not, however, pay the fees of such mediators; it has to be right that parties themselves should bear their cost if persuaded of the benefits. The noble Lord’s amendment could have the effect of requiring public funding for private mediation.

Clause 5 provides for ACAS’s existing duty to conciliate in cases where no claim has yet been presented to an employment tribunal to become a power. Amendment No. 12 would remove that change. We cannot support this. It may be helpful to explain the context of our proposed change. ACAS currently has a duty to offer conciliation in certain cases which are capable of becoming the subject of an employment tribunal claim where both potential parties request it, or, where one party makes a request, the conciliation officer judges that there is a good prospect of success. That duty has been on the statute books since the 1970s. During the 1980s, ACAS increasingly found employers asking ACAS to assist with cases which were never likely to become the subject of an employment tribunal claim, at the taxpayer’s expense. In response, the ACAS council decided to interpret the duty strictly in the spirit in which it was intended, so that the pre-claim conciliation service could be focused on cases which were otherwise more or less certain to become the subject of a tribunal claim. As a result, the numbers carried out have been small.

Following overwhelming support for more early ACAS conciliation from respondents to the consultation on the Gibbons review, the Government will invest up to £37 million in additional conciliation resource and in improving the ACAS advice service, which, among other things, will be able to explain to people what help is available to resolve disputes and offer the statutory ACAS conciliation service in cases which seem likely to benefit from it and where the parties

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wish it. There is a risk that demand for ACAS conciliation services will exceed supply once the service is actively made available as we now intend. We therefore wish to ensure that ACAS is able effectively to manage the new case load without having unduly to restrict the use of its services. That is why we wish to change the existing duty to conciliate to a power to enable it to do so without being exposed to legal jeopardy.

Amendment No. 13 would add to Section 18(6) of the Employment Tribunals Act words enabling the encouragement of the use of mediation as a first step in any conciliation process. The subsection already provides for this through a broad requirement that,

Finally, Amendment No. 10 also seeks to encourage employers to use conciliation and mediation. ACAS plays a key and valued role in the resolution of workplace disputes and the Government are supportive of codes of practice issued by ACAS. As your Lordships will be aware, ACAS is revising its code of practice on disciplinary and grievance procedures to be principles-based and concise, supported by fuller non-statutory guidance. Tribunals will then be able to consider the appropriateness of parties’ behaviour in the particular circumstances of a case against the principles set out in the code, in line with the conclusions of the Gibbons review and the public consultation. This is a sensible and balanced way of encouraging employers and employees to follow the principles of good practice in the early resolution of workplace disputes and overcomes the unforeseen and undesirable results experienced when detailed procedures were enshrined in primary legislation.

I circulated an early draft of the code in Committee. The draft has now been issued by ACAS for public consultation. All interested parties can comment on it to ACAS. It clearly says that employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace, and the foreword to the draft makes specific reference to third-party assistance. ACAS will also be considering including further guidance on obtaining outside help, such as mediation, in its accompanying detailed guidance booklet. That might give even more help and assistance on the issue raised by the noble Lord, Lord Hunt.

In conclusion, these amendments are unnecessary as there will be more than adequate measures to encourage conciliation and mediation where it is appropriate, whereas legislating would lead us back into being overly prescriptive and lacking flexibility. Please do not mistake the Government’s opposition to these amendments for a stance of not encouraging mediation and conciliation. That must be the way forward, but we must ensure that we do not remove flexibility or become overregulated and overly prescriptive, and ultimately fall foul of the law of unintended consequences.

Lord Hunt of Wirral: My Lords, I am grateful to the Minister for a positive response to which I will return in just a minute. I first thank my noble friends Lord Campbell and Lord Henley for their support, drawn in both their cases from a substantial understanding

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of what is required. Despite the Minister’s reference to the sign on his desk saying, “Settle out of court? What is the fun in that?”, I sense that he was describing those as the bad old days to which we should not return. I could not agree with him more.

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