HEARINGS BY CHAIRMAN AND ONE OTHER MEMBER (Hansard, 20 March 1998)

§ Mr. Lansley
I beg to move amendment No. 2, in page 3, line 46, leave out from 'means' to 'consent' in line 48.
Amendment No. 2 is very straightforward and I shall not detain the House long in explaining its purpose. In circumstances where a tribunal, which normally consists of a chairman and two lay members, is reduced to two members—the chairman and one lay member—by virtue of the failure to attend on the part of one lay member, for example, the amendment would prevent the proceedings going ahead, save with the consent of both parties. That would include circumstances in which one of the parties was not present at the hearing.
Whether or not the parties to a hearing are present, they will have consented or presented evidence to a hearing with legitimate expectations about the character of that 1587 hearing. It may be, for example, that an employee is assuming that the tribunal will consist of two lay members, one of whom may have a trade union background. If that trade union person fails to attend, the legitimate expectations of the employee, whether or not he or she is present, will have been frustrated. Under those circumstances, the amendment would provide that the proceedings could not go ahead. Of course, if both parties are there and give their consent, the tribunal could proceed as intended.

§ Mr. Ian McCartney
Those who serve on tribunals are not there to represent employer or employee interests. The two lay members are independent and are appointed for their skills. The chairman always has a legal standing. They do not represent employers or trade unions. The tribunal is there to hear the facts and make a determination on them.

§ Mr. Lansley
I am grateful to the Minister for that. I presume that when a hearing is constituted, those attending will be aware of the background of the members appointed to the tribunal and will have legitimate expectations because of that.

§ Mr. McCartney
I hope that that is not the case. If people whom we appointed were acting in a partisan way, I would consider it unacceptable conduct. We do not want people to act in a partisan way. We want them act independently and make judgments on the basis of fact.

§ Mr. Lansley
I understand the Minister's point, but I hope that he accepts that—as we debated on the National Minimum Wage Bill in relation to a chairman sitting alone—there are legitimate expectations about the character of a tribunal and the background of its members. The legally qualified chairman should sit with two wing members who bring a range of expertise. That is how tribunals are constructed. If one of those members is not there, whatever their background, the expectations on the spread of experience available may be frustrated. If the parties are prepared to consent to that, they should be able to proceed. However, if a party is not there and there were expectations about the structure of the tribunal, it would be wrong for the tribunal to proceed.

§ Mr. Patrick Nicholls (Teignbridge)
There is a problem. Initially, it sounds fine to say that if both parties consent, the tribunal can go ahead. However, bearing in mind the costs that may have already been incurred, there could be considerable pressure. Both parties may apparently consent to the tribunal going ahead in a truncated form, but that could be a difficult judgment, perhaps made with some misgiving, mindful of the costs that would otherwise be incurred.

§ Mr. Lansley
I understand my hon. Friend's point. If the parties are there, they have to balance those considerations. They may feel under pressure of costs. If they are not there—this is where the amendment would be particularly relevant—they are not in a position to weigh up the consequences of the failure of one member of the tribunal to attend. Tribunals may take a long time. Considerable resources may be at stake. The establishment 1588 of the tribunal and its balance between the legally qualified chairman and the lay members can be significant in such circumstances. I commend the amendment.

§ Mr. Steen
I hope that the Labour party is not programmed to reject all the amendments and new clauses tabled by the Conservatives. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) has made a serious point. I hope that it can be squeezed in without too much fuss. I hope that it will be seriously considered and not just rejected out of hand.

§ Mr. Healey
The purpose of clause 4 is to deal with a particular circumstance that may arise from time to time. Tribunal proceedings may currently be heard in the absence of one lay member—for example, if they are ill—but only if all the parties agree. All those parties must agree, regardless of whether they are present.
If a tribunal is scheduled to proceed and one of the parties has said that they do not wish to be present, they must still be consulted on whether they are content for the proceedings to go ahead if one of the lay members is unable to attend because they are ill or have had a crash on the way. It is not always possible to contact the absent party in such circumstances. As a result, hearings have to be postponed, rescheduled and listed for another day. The amendment would negate the entire change proposed in clause 4. Indeed, it would have been clearer if the amendment had said, "Delete clause 4", because that is its effect.
Clause 4 was a response to a request by tribunal chairmen in England, Wales and Scotland during the 1994 round of consultation. It was then overwhelmingly supported by respondents to consultation on the draft Bill. Clause 4 will lead to a swifter resolution in a few cases, and to that extent it is worth having. I urge Conservative Members to withdraw amendment No. 2.

§ Mr. Lansley
I have neither support from the Government Front Bench nor from the hon. Member for Wentworth (Mr. Healey), the Bill's promoter. On that basis, I beg to ask leave to withdraw the amendment.