DETERMINATIONS WITHOUT A HEARING OR FULL HEARING (Hansard, 20 March 1998)

§ Mr. Garnier
I beg to move amendment No. 14, in page 2, leave out lines 7 to 10.

Mr. Deputy Speaker
With this, it will be convenient to discuss the following amendments: No. 3, in page 2, line 9, leave out '(whether or not they have subsequently withdrawn it)'. No. 16, in page 2, line 10, at end insert 'provided that such consent was given at a time when all relevant parties have had a fair opportunity to obtain competent independent advice'.

§ Mr. Garnier
Amendment No. 16 adds a safety mechanism to employment tribunal proceedings, especially where the regulations, as amended, allow for disputes to be resolved or determined without any hearing.
I invite the House to consider clause 2, which refers to section 7 of the Employment Tribunals Act 1996 (which authorises the making of employment tribunal procedure regulations)". Clause 2 allows an insertion into that Act in these terms: (3A) Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing (and in private) where the parties have given their written consent (whether or not they have subsequently withdrawn it). I fully understand the need for speed in the delivery of justice in certain circumstances. There are some cases where a good dose of adversarial justice is required to get to the nub of the dispute, whether it is a dispute of law or of fact. We see that in magistrates courts day in, day out, where motoring cases are often dealt with without a full hearing. Indeed, the Magistrates' Courts (Procedure) Bill, which has completed its Committee stage upstairs and is due for Report here, I dare say a little after Easter, is another example of where a much speedier version of events can be arrived at without any detraction from the justice required in any given motoring case.
This Bill authorises the determination of proceedings without any hearing. I have a little concern, which amendment No. 16 may alleviate, about the words "and in private" because justice, if it is to be done—I can see my hon. Friend the Member for Gainsborough (Mr. Leigh) groaning at the use of yet another cliché—must be seen to be done. The words "and in private" would cause me even more concern if my amendment were not allowed into subsection (3A).
The subsection continues: where the parties have given their written consent (whether or not they have subsequently withdrawn it). The words in parenthesis again underline the need for the amendment. It is one thing to do away with the need for a hearing; it is another to have the proceedings held in private. It is one thing to allow parties to give their written consent to the disposal of the matter without a hearing and in private, but quite another for disadvantaged, possibly not very well educated, people to have their claim decided in private, without the benefit of competent independent advice.
The House has, I hope, noticed that, although I speak as a lawyer, I do not require the words "competent and independent legal advice" or "independent legal advice" to be entered into the Bill. What is important is that the person making the claim can obtain competent independent advice.
Many of the cases that have come before industrial tribunals and will come before the new employment tribunals have and will be brought by individual employees without the assistance of a trade union. I know that the Minister is a doughty supporter of trade unions and their rights and the way they have assisted employees. There is a place for trade unions and they have played a valuable part in the history of the 20th century and the economic growth of this country. However, not everybody, for reasons good and bad, has the benefit of trade union advice and representation.
Such hearings involve both sides of the employment divide. I do not mean to be controversial by using that phrase; perhaps I should talk of both sides of the 1584 employment table. Employment in my constituency is predominantly provided by small family companies with annual turnovers well under £1 million—under £100,000 in many cases—not by one huge international company. Small family employers do not necessarily have the time, money or resources to employ a firm of solicitors, whether in Leicester, London or one of the conurbations convenient to my east Midlands constituency.
My hon. Friend the Member for North Shropshire (Mr. Paterson), in his remarks on new clause 9, highlighted examples of individual employers who feel that they have been placed over a barrel by the way the system is stacked against them. I seek to protect those employers—and the employees I mentioned earlier—from being railroaded into a result with which they feel no connection. Unless people are able to give informed consent, in this as in many other areas of dispute, it will be difficult for the public to be satisfied with the legislation we have provided and the way in which the tribunal system works.
I urge the House to consider carefully the need for independent and competent advice. The genesis of the Bill stems from the work of the previous President of the Board of Trade, now Lord Lang, and the consultation process that accompanied his draft Bill in 1996. That consultation produced some interesting conclusions, and I am grateful to the Library staff for their assistance in my research.
The consultation document published in July 1996 explained that the aim of the proposal was to streamline the procedures by allowing the chairman to determine a case on the basis of written evidence and without a hearing. The consent of both parties would be required. The parties could opt for that procedure or the tribunal could of its own volition ask the parties whether they agreed that their case could be determined on written advice alone.
Some 67 responses were received in favour of the proposal and only 33 against. Importantly, 101 of those responding failed to express a view. That underscores my point that parties in proceedings need competent independent advice. If people are not prepared, when they are handed a consultation paper, to express a view about whether a dispute should be handled without a proper hearing, that highlights the need for independent advice to be available. Obviously, if advice is available but people do not take it, that is their hard luck. The Bill should ensure that advice is available to those who are invited to attend the hearing.

§ Mr. James Gray (North Wiltshire)
Does my hon. and learned Friend agree that—for two reasons—the Minister was being particularly unfair when he attacked the previous Administration for not turning the consultation paper into legislation? The first reason is that the consultation period was last autumn, after the Queen's Speech, so it would not have been possible to introduce legislation based on the consultation paper before the fast approaching general election. The second reason is that the new Government also have not included such legislation in a Queen's Speech. We are debating a private Member's Bill.

§ Mr. Garnier
I take those points, but the Minister is incapable of malice and I would not wish to cast more aspersions on him.

§ Mr. Clifton-Brown
Does my hon. and learned Friend agree that legislation passed by the House should be clear and unambiguous? Does he agree that the proposed new subsection (3A)— (whether or not they have subsequently withdrawn it)"— is ambiguous, as it can be read both ways? Does he agree that amendment No. 14 should be passed because most small firms in particular come up against this type of employment legislation only once in a blue moon? Both parties should have access to properly qualified advice.

§ Mr. Garnier
I think that I understand my hon. Friend's point. I have tabled my amendment because the wording in brackets is not ambiguous. I want the clause to be amended to provide greater assistance to those who do not have advice but who should have it. I think that I have made that point, and making a good point several times does not improve it.

§ Mr. Lansley
I should like briefly to speak to amendment No. 3, which touches on the point that has just been made on clause 2. The wording in brackets— (whether or not they have subsequently withdrawn it)"— would enable the tribunal to proceed on the basis of written submissions without a hearing, even if one party subsequently concluded that that would not be in its interest. I have tabled amendment No. 3 specifically—only—to protect people in those circumstances.
I acknowledge that there is a danger that people might vexatiously withdraw consent only to prolong proceedings or to incur additional costs. Nevertheless, one can conceive of circumstances in which parties to proceedings, particularly—as my hon. and learned Friend the Member for Harborough (Mr. Garnier) clearly explained—parties that are at a disadvantage against a well-financed employer who has produced very good evidence. I think that all hon. Members will acknowledge that there are circumstances in which an employee, in particular, may be far better able to expand a case in person—orally, and in cross-examination—than in written proceedings.
If amendment No. 14 is not accepted, we should leave that small opportunity for people to withdraw their consent to proceeding on the basis of written evidence alone—to give them their day in court.

§ Mr. Healey
It was remiss of me earlier not to welcome the hon. Member for Totnes (Mr. Steen) to the Opposition Front Bench. I enjoyed his distinctive speech, and welcomed his confirmation of the Conservative party's backing for the Bill.
This group of amendments deals with the power provided in clause 2 for tribunals to determine a case, when both parties agree, on the basis of written evidence alone and in private. All three amendments are unacceptable. If they were accepted, they would waste the time of both the tribunal and the parties to the tribunal.
Amendment No. 14 would not prevent determinations based on written evidence, but would merely prevent such determinations being made in private. As such determinations are made according to the papers on the file, there is no need for a public hearing. The proper principle outlined by the hon. and learned Member for 1586 Harborough (Mr. Garnier) that justice must be seen to be done does not come into play in this respect. Amendment No. 14 would be a waste of the tribunal's time.
Amendment No. 3 would enable parties who had given their consent for a written determination in private to withdraw that consent at any stage in the subsequent proceedings. That would unnecessarily waste the time of the tribunal and the other party.
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Amendment No. 16 touches on a much more important point that was eloquently set out by the hon. and learned Member for Harborough. It seeks to insert a requirement for the parties to have had the opportunity to receive advice before agreeing to such a determination. Although it is important for parties to seek advice at each stage in taking a case to a tribunal, particularly when waiving a right, for instance in seeking a compromise agreement, we cannot reasonably require them to do so before deciding to have their case dealt with in a certain way. Parties are not giving up their right to have their case determined by the tribunal; they are merely choosing to have it dealt with in a particular way.
In conclusion, the amendments do nothing to achieve the aims of the Bill in streamlining the tribunal system of justice or to make it easier for employees and employers to use it.

§ Mr. Garnier
I was hoping that the Minister might be able to help us out of this difficulty, but he appears to be glued to the Front Bench. It seems that I am not getting the support that I had hoped to get for the amendment, despite its merits. I am grateful to the hon. Member for Wentworth (Mr. Healey) for explaining his view on the matter and I fully take the point that the absence of a requirement to take advice, which he clearly does not want in the Bill, does not prevent anyone from doing so. Clearly, anyone who is faced with such a problem ought to seek competent independent advice before taking any decision about his rights.
I am sorry that the House is not with me on this matter, and, as I understand the mathematics of the House of Commons, I beg to ask leave to withdraw the amendment.