Employment Appeal Tribunal: Procedure Rules (Hansard, 21 March 1994)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the short Answer is yes, but in view of the fact that I do not accept some of the allegations in the article to which reference is made in the Question perhaps your Lordships will bear with me while I give a rather fuller explanation.
Rule 3 of the Employment Appeal Tribunal Rules provides that where it appears to the registrar that a notice of appeal does not give the appeal tribunal jurisdiction to entertain the appeal, then subject to the opportunity for the appellant to revise the notice and to express dissatisfaction with the reasons given by the registrar, no further action should be taken on the appeal.
I understood Mr. Justice Wood's position to be that it was undesirable to apply the Rule 3 procedure fully. After many exchanges with Mr. Justice Wood and against the mounting backlog in the EAT, I remained concerned that that view was still affecting the work of the EAT. Accordingly I wrote to Mr. Justice Wood asking for his assurance that Rule 3 would be applied in full and that preliminary hearings were not being used when no jurisdiction was shown in the notice of appeal. If he did not feel able to give me that assurance I asked that he should consider his position. That meant that I wished to ascertain on what basis a procedure not applying that rule in full might properly rest. I had no intention whatever of inviting Mr. Justice Wood to resign his judicial office, and I did not do so.

§ Lord Lester of Herne Hill
My Lords, most unfortunately, I am bound to say that I find the Answer given by the noble and learned Lord the Lord Chancellor less than satisfactory. Am I not right in saying that the letter from the noble and learned Lord the Lord Chancellor was written only after he had received a full and carefully considered letter from Mr. Justice Wood, written after he had consulted senior legal colleagues, explaining why Mr. Justice Wood, and his predecessors, regarded the long-standing practice of the Employment Appeal Tribunal as expeditious, economical and conducive to the interests of justice, and why he could not see any alternative way of fairly resolving the problem in the manner demanded by the noble and learned Lord the Lord Chancellor? Did not the noble and learned Lord the Lord Chancellor in his letter say in terms that he wished no further discussion of the rule, despite Mr. Justice Wood's full and reasoned earlier letter?

§ The Lord Chancellor
My Lords, as I said, I had a number of discussions and exchanges with Mr. Justice Wood. He was concerned about the interpretation of the rule, especially the meaning of the phrase to which I referred in my Answer about jurisdiction to entertain the appeal. As I made clear to him, I was concerned with the question of whether the rule was being applied. I was not disputing his interpretation of the rule; I was asking that the rule should be applied.
That rule was laid down, under the authority of Parliament, in its original form by Lord Elwyn-Jones and in its current form by my noble and learned friend Lord Hailsham. I concluded that it was necessary that the rule should be applied, having been laid down by 499 statutory authority. I considered that as the Lord Chancellor was under parliamentary authority—the rule-making authority in this connection—he was entitled to ask for such an assurance. If Mr. Justice Wood was not prepared to give that assurance I wished him to state the basis upon which a procedure, which was not fully applying the rule, could properly rest.

§ Lord Oliver of Aylmerton
My Lords, is the noble and learned Lord aware that this matter is the cause of the gravest anxiety to the judiciary and to practitioners? Is it the fact that an assurance was demanded of the judge that he exercise his judicial discretion by adopting a procedure that he had already indicated on carefully reasoned grounds he regarded as inappropriate and contrary to the established practice of Employment Appeal Tribunal?

§ The Lord Chancellor
My Lords, I had understood Mr. Justice Wood's anxieties about the rule. My point was that the rule had been laid down for a statutory tribunal under statutory authority. Therefore, it was a rule to which the Employment Appeal Tribunal was subject.
My noble and learned friend Lord Oliver asked about anxiety within the judiciary and among practitioners. Prior to the article appearing in the Observer to which the Question relates, no member of the judiciary—that is, apart from one who came to see me in connection with another matter and mentioned this matter, and apart from discussions with my colleagues in heads of division—has raised any question about this matter with me.

§ Baroness Elles
My Lords, almost a year has passed since the writing of the alleged letter and the publication of the article in the Observer on 6th March. Prior to that date was there any suggestion of the resignation of Mr. Justice Wood or his transfer from the Employment Appeal Tribunal?

§ The Lord Chancellor
My Lords, Mr. Justice Wood resigned later. He made it clear to me in his letter of resignation that it had no connection whatever with this matter. A considerable time before that letter was written, he had made it clear to one of my colleagues, a head of division, that he intended to resign in 1993. With that knowledge one could have left this matter over but, in view of the discussions that had taken place, I felt it right to put to Mr. Justice Wood, as succinctly as I could, the real issues in this letter.

§ Lord Taylor of Gosforth
My Lords, is the noble and learned Lord the Lord Chancellor aware that I was privy to this matter at the time, that I did not consider there to be any question of suggesting to the judge that he ought to resign has judicial office and that if I had felt any anxiety about, any encroachment on judicial independence I would have raised the matter with him?

§ The Lord Chancellor
My Lords, I am extremely grateful to my noble and learned friend the Lord Chief Justice. I am aware of what he said and I know well that he is ready to raise any questions that would impinge upon judicial independence in respect of any action of mine. As regards the judicial complement, the 500 arrangements for the EAT on a day-to-day basis were normally handled by my colleagues in the judiciary; that is, the Lord Chief Justice and in particular at the relevant time the then Deputy Chief Justice.

§ Lord Irvine of Lairg
My Lords, many appeals to the EAT are by appellants who do not qualify for legal aid and are thus unrepresented. Therefore, does the noble and learned Lord believe that there is a real risk of injustice if so-called "hopeless cases" are dismissed without the appeal tribunal having satisfied itself at a preliminary hearing where the appellant is heard that there is no arguable ground for appeal? Is that not so in particular because so many applications that are considered by the EAT at a preliminary hearing go forward to a full hearing on the footing that there is an arguable point, and they actually succeed?

§ The Lord Chancellor
My Lords, I appreciate the value of an oral hearing to a prospective appellant. But I have no doubt that when Lord Elwyn-Jones made these rules after consultation with the then Lord President of the Court of Session he had that in mind. The rules make a provision along these lines. If one is looking at justice in this matter, the important point is that people who had an undoubted case before the Employment Appeal Tribunal, a case in which there was jurisdiction, were being kept waiting for some two years while resources that could have been used for those hearings were devoted to the preliminary hearings to which reference has been made.

§ Lord Campbell of Alloway
My Lords—

§ The Lord Privy Seal (Lord Wakeham)
My Lords, we must move on.