LEGAL OFFICES (Hansard, 20 March 1998)

§ Mr. Leigh
I beg to move amendment No. 18, in page 4, line 19, at end insert— '(6D) In this section a "legal officer" means—

(a) as respects England and Wales, a barrister of not less than two years call (whether in practice as such or employed to give legal advice), a solicitor admitted for not less than two years who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)

(b) as respects Scotland, an advocate of more than two years standing (whether in practice as such or employed to give legal advice), or a solicitor of more than two years standing who holds a practising certificate.'.

Mr. Deputy Speaker
With this, it will be convenient to discuss the following amendments: No. 24, in schedule 1, page 14, line 41, after 'barrister', insert 'of not less than two years call'. No. 25, in page 14, line 42, after 'solicitor', insert 'admitted for not less than two years'. No. 26, in page 14, line 46, after 'advocate', insert 'of more than two years standing'. No. 27, in page 14, line 47, after 'solicitor', insert 'of more than two years standing'. No. 28, in page 15, line 39, after 'barrister', insert 'of not less than two years call'. No. 29, in page 15, line 40, after 'solicitor', insert 'admitted for not less than two years'. No. 30, in page 15, line 44, after 'advocate', insert 'of more than two years standing'. No. 31, in page 15, line 45, after 'solicitor', insert 'of more than two years standing'. No. 32, in page 17, line 16, after 'barrister', insert 'of not less than two years call'. No. 33, in page 17, line 17, after 'solicitor', insert 'admitted for not less than two years'. No. 34, in page 17, line 21, after 'advocate' insert 'of more than two years standing'. No. 35, in page 17, line 22, after 'solicitor' insert 'of more than two years standing'. No. 36, in page 18, line 14, after 'barrister', insert 'of not less than two years call'. No. 37, in page 18, line 15, after 'solicitor', insert 'admitted for not less than two years'. No. 38, in page 18, line 19, after 'advocate', insert of more than two years standing'. No. 39, in page 18, line 20, after 'solicitor' insert 'of more than two years standing'. No. 40, in page 20, line 49, after 'barrister', insert of not less than two years call'. No. 41, in page 20, line 50, after 'solicitor', insert 'admitted for not less than two years'. No. 42, in page 21, line 3, after 'advocate', insert 'of more than two years standing'. No. 43, in page 21, line 4, after 'solicitor', insert 'of more than two years standing'.

§ Mr. Leigh
I have been asked to speak to this group of amendments. They are very clear and I hope that the hon. Member for Wentworth (Mr. Healey) will think that they are useful additions to the Bill. All that they seek to do is ensure that the legal officer is someone of appropriate standing and experience—because his duties will be very onerous.
The Bill specifies that a legal officer can be appointed to relieve chairmen of some of their duties. The introduction of the concept of a legal officer has long been 1590 envisaged by those who wanted to promote the Bill—indeed, by the previous Government, whose consultation paper in July 1996 said: The aim of the proposals is to relieve tribunal chairmen, particularly in the large offices, of some of the interlocutory duties they currently are required to fulfil by appointing 'legal officers'. The duties that will have to be undertaken by the legal officer are very wide ranging. They could include granting postponements, making witness orders and carrying out pre-hearing reviews. As a practising barrister, I can say that such pre-hearing reviews are becoming increasingly important. It will therefore be immediately apparent to the House that the duties of legal officers will be very heavy.

§ Mr. Garnier
Is it of help to my hon. Friend to put to him the similarity of the work that it is proposed will be done by legal officers with that already done by district judges and Queen's Bench and Chancery Division masters in litigation with which he and I will be very familiar?

§ Mr. Leigh
My hon. and learned Friend makes a very interesting point. Only this year, I was engaged not in civil proceedings but in criminal proceedings, where pre-trial reviews were very onerous and difficult as they appertained to a long fraud trial. Such matters really have to be considered by a very experienced judge. That shows some of the problems. Although the proposals concern interlocutory proceedings, pre-hearing reviews could deal with quite complex matters. Therefore, the duties that we are placing on a legal officer are very important.
Notwithstanding that, consultation took place. Of the respondents, 49 were in favour of appointing legal officers, 19 were against and 133 expressed no view. Like my hon. and learned Friend the Member for Harborough (Mr. Garnier), who was at the time referring to a previous group of amendments, I am rather worried that 133 expressed no view. One assumes that those who take an interest in these matters have come down in favour of the appointment of legal officers.
The trouble is: are we absolutely convinced that legal officers will have the necessary experience? Will they be of appropriate standing? Addressing such questions is the purpose of the amendments.

§ Mr. Nicholls
If I have understood the purpose correctly, the legal officer will not simply be appointed by qualification, because of the point about time spent. Also incorporated is the possibility of authorised advocates and authorised litigators, which is perhaps a concept with which many people outside the House will not be immediately familiar.

§ Mr. Leigh
I am very glad that my hon. Friend has made that point. That is why the amendments are so appropriate. Amendment No. 18 says that a legal officer in England and Wales should be a barrister of not less than two years call (whether in practice as such or employed to give legal advice)", or a solicitor admitted for not less than two years who holds a practising certificate". It seems to me that this is an entirely proper amendment.
1591 If a barrister has two years' call, we might assume that he has the necessary experience to undertake this sort of work. The House may not be familiar with the way in which barristers are trained. One can become a barrister before having any practical experience of court work, providing written advice or anything else. Indeed, there are some barristers in the House—distinguished Members of Parliament—who have never pleaded in the courts and have no direct practical experience of legal work. Therefore, if we are to appoint legal officers to carry out these onerous duties, it is entirely sensible to stipulate that they have the basic experience of two years' call.
I hope that the hon. Member for Wentworth, when he stops walking around the Chamber seeking advice, will accept what I have said. I commend the amendments to the House.

§ Mr. Ian McCartney
The amendment raises an important point and I want to respond in a positive way. It is right that the legal officers are fully able to carry out the important responsibilities that will be assigned to them. My officials are considering this carefully and will consult those with an interest, most important, the presidents of the industrial tribunals. We gave an undertaking in the other place to do that, and I reaffirm that now.
The concept of legal officers is new, so it is important that it is tested to see whether it is feasible. In order to do that, a pilot scheme is being prepared. It would entirely defeat the object of that scheme if matters such as qualifications, tasks, and so on were set out in primary legislation at this stage. It is also unnecessary, because matters relating to tribunals are set out in the regulations dealing with their constitution. Legal officers will not be able to carry out pre-hearing reviews or determine proceedings, except where a case has been withdrawn or settled.
I hope that I have reassured the House that we intend to deal with these matters in a competent, effective way—through consultation, by piloting and, having learnt from the piloting, by bringing in appropriate schemes. By "appropriate", I mean subject to consultation. The whole purpose of the Bill is to ensure that the partners in the case consent to the process. It is important to handle the matter carefully.
As there was a good deal of support for the principle of the Bill during consultation, and as it is our intention to move forward in a careful and measured way, I hope that the hon. Member for Gainsborough (Mr. Leigh) will withdraw the amendment. His points were genuine and effective, but we have already considered them and our proposals should therefore satisfy him.

§ Mr. Lansley
I understand that there are some lawyers with employment expertise who, because they do not require rights of audience in court, are not authorised advocates or litigators. Is it intended to include that sort of employment law specialist?

§ Mr. McCartney
Given the time, I will write to the hon. Gentleman fully setting out our intentions.

§ Mr. Leigh
I am grateful for what the Minister has said. He responded helpfully and positively to the amendments and the purport of them. I am delighted that 1592 he intends to undertake further consultation and that it is not envisaged that the legal officers to whom I referred will carry out pre-hearing reviews. In those circumstances, I beg to ask leave to withdraw the amendment.

§ Mr. Lansley
I will not take up a great deal of time, but, having moved a new clause and tabled a number of amendments for Report stage, I want to take the opportunity to extend a general welcome to the principle of the Bill. My hon. Friend the Member for Totnes (Mr. Steen), who spoke eloquently to the new clause—rather more eloquently than I did earlier—gave the Bill a general welcome from Conservative Members.
The Bill was very much the product of lengthy consultation and it would be remiss of the Minister to chide the previous Government for failing to bring in the Bill. We proceeded with the Bill through means of exhaustive consultation—rightly so, given that it relates to the administration of justice and, therefore, has to command the utmost confidence of the parties involved.
There is also a slight sense that we wish that we had not arrived at this point. Tribunals were initially established to offer a speedy, effective and cheaper route of justice than that provided by the courts. Yet we have alternative disputes resolutions and mechanisms because parties to the dispute can perceive the tribunals procedure as being relatively expensive.
Notwithstanding the fact that delays in tribunals are less now than when the Bill was conceived, a considerable volume of business passes through them.

§ Mr. Steen
I hope that my hon. Friend will comment on another point. The Government are creating increasing amounts of legislation that will result in industrial tribunals being even more blocked. Also, there is more legislation coming from Europe, which will create another blockage. Does my hon. Friend agree that, for those reasons, the Bill is necessary?

§ Mr. Lansley
My hon. Friend knows well that the Bill was contemplated by the previous Government as a way of dealing with the considerable and growing volume of business passing through industrial tribunals at that time. It was not contemplated to deal with the additional cases that will be brought before employment tribunals as a result of the national minimum wage legislation. However, it would not be wrong to expect that that legislation will bring additional business before the tribunals, so everything that can be done to ease progress should be done.
My hon. Friend rightly said that the Bill should also try to buttress internal appeals procedures wherever possible within companies. Some amendments have been tabled on that subject, but time has not permitted us to debate them in detail. Parties should seek, wherever possible, to deal with their disputes through internal company procedures. Where that is not possible, it must be in the interests of the companies and the participants to deal with disputes through compromise agreements. We have a useful 1593 measure that allows more compromise agreements to be entered into, using not just legal advice, but wider advice and arbitration procedures.
The Government have largely followed the path set down in previous consultation and in the document published in July 1996 by Lord Lang, the then Secretary of State for Trade and Industry. One omission is that the Government have chosen not to use private arbitration schemes in addition to those arranged through ACAS, which is a pity. I acknowledge that, if they wish, the parties to a dispute can go to arbitration. However, the parties entering into private arbitration cannot, as I understand it—I stand to be corrected by the hon. Member for Wentworth (Mr. Healey) and the Minister, who understand such matters better than I do—do so in ways that take advantage of powers contained in the legislation. One such power involves setting aside an appeal against that arbitration. The legislation circumscribes the circumstances in which parties are likely to use arbitration. I think that both parties will probably find it risky to use arbitration, except through the procedures devised by ACAS. That is not to say that ACAS itself is the arbitrator or that ACAS will not necessarily be using some of those people who are best qualified to undertake such arbitrations. They may not necessarily be legally qualified, but they could come from a range of people with appropriate experience—from the workplace, trade unions, personnel, management or wherever. None the less, they will do so in the context of a scheme established by ACAS rather than one that is established by bodies other than ACAS. It is in the nature of the private route for resolution procedures that bodies other than ACAS may be able to devise cheaper, less bureaucratic, more accessible and altogether more user-friendly routes to arbitration.
It would have been within the spirit of the way in which the measure has been brought about—essentially on an all-party basis—if the Government had proceeded on the basis of the consultation that took place before the election, rather than resting on the bureaucratic body that they know best. That is not to decry or diminish the role of ACAS, which I accept has an established role in collective disputes, though less so in individual disputes. It may well be that, by using pilot procedures and permissive legislation, it would have been possible for private schemes to be established, which would have worked effectively and might have built up rising confidence on the part of the parties that, unfortunately, enter into disputes.
Notwithstanding that criticism, I take the opportunity on Third Reading to welcome the Bill and to offer congratulations to the hon. Member for Wentworth on steering it through the House. He has done so with a wealth of expertise and experience, which is practical, pragmatic and, it is to be hoped, proved in the event.

§ Mr. Gray
I add my voice to those of my right hon. and hon. Friends in offering congratulations to the hon. Member for Wentworth (Mr. Healey) on having the sound good sense to introduce the Bill and pilot it through its various stages in the House. I congratulate the hon. Gentleman also on having the sound good sense to take up a proposal that was first thought up by the Conservative 1594 Administration, which ended on 1 May 1997. It was the brainchild of the then President of the Board of Trade, Ian Lang. I am sure that he deeply regrets that, because the consultation procedure took place in the autumn of last year, he was not able to introduce a Bill to enact the proposals on which he had consulted.
It was slightly ungracious of the Minister to upbraid the Conservative party for not having introduced the proposals set out in the Bill into law; the Labour party has equally failed to do so. There has been a Queen's speech following the election of the Labour party into government, yet it failed to include the proposals in that programme. As I have said, I congratulate the hon. Member for Wentworth. I hope that he will be successful in introducing the Bill.

§ Mr. James Paice (South-East Cambridgeshire)
My hon. Friend will know that the previous President of the Board of Trade produced a general consultation paper and a draft Bill. Does he agree that it is a great tribute to Ian Lang that he introduced a draft Bill, because it gave an opportunity for everybody involved to consider the rights and wrongs of the proposals and to get future legislation right? The Bill is slightly different from the draft Bill. That draft Bill gives the lie to the Government's suggestion that, by introducing draft Bills, they are developing a new policy. We have already seen draft Bills.

§ Mr. Gray
My hon. Friend makes a good point. The Conservative party conceived the notion of introducing draft Bills. It is slightly irritating or upsetting to hear the new Government crowing about how clever and democratic they are being in introducing such Bills. I welcome the fact that the previous President of the Board of Trade introduced a draft Bill.
The Opposition broadly support the main thrust of the Bill. However, the hon. Member for Wentworth and the Minister will have heard valid and important concerns expressed by us during our debates. We naturally massively support the notion of industrial tribunals. I understand that there have been 1 million hearings and 30,000 cases so far. They have been a significant and accessible route for settling industrial disputes.
We are wholly supportive of industrial tribunals and the main thrust of the Bill. We are concerned that they became clogged up towards the end of the previous Parliament because of the volume of cases that were brought before them. Therefore, any means that can be found to make them more efficient; that allow more cases to be heard; and allow the rights and worries of employees and employers to be heard is important. I am glad that my right hon. and hon. Friends support the main thrust of the Bill.
There are two or three areas of particular concern, which we have raised during the debate. They concern—