HL Deb 25 March 2002 vol 633 cc321-66GC

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]:

The Deputy Chairman of Committees

Before the Committee begins, it has been agreed through the usual channels that as soon as the noble Lord, Lord Goodhart, rises to speak in the Chamber, the Committee will adjourn, because the noble Lord, Lord Sainsbury, and the noble Baroness, Lady Miller, have to take part in the Consignia Statement. The Committee will reconvene as soon as the first Statement is finished. I would remind Members of the Committee that there will be no Divisions in the Grand Committee; noble Lords will speak standing.

Clause 33 [Complaints about grievances]:

Lord McCarthy

moved Amendment No. 147: Page 37, line 39, leave out "28" and insert "14 The noble Lord said: In moving Amendment No. 147, I shall speak also to Amendments Nos. 148 and 149. This brings us to Clause 33 which is, without doubt, the most controversial clause in the Bill. The CBI favoured it greatly and in fact it would be no exaggeration to say that the CBI sees it as the main force which it hopes will reduce the hearings by some 30,000 to 40,000. It urges the Government not to weaken as regards excluding claims. If Clause 33 does not do its job, the CBI says that it will come back and ask for it in another form to make it more effective in excluding the total number of claims. From that point of view, this is a very important clause for employers.

On the other hand, if we go to the other extreme, Judge Prophet regards it as a degrading clause which blatantly disregards the legal entitlements of the applicant. This is very controversial. The Law Society thinks that the Government should take it away and tear it up. It believes that Clause 31 would do the job of Clause 33 if the tribunals were given a certain amount of discretion. It says that it is misconceived. Quite recently—although I do not think we have not mentioned it in our debate so far in this Chamber—the Joint Committee on Human Rights looked at this clause. They did so, largely because they were asked to by Judge Prophet. He wrote to them and said, as I have said, that it was a terrible Bill. This committee of both Houses looked at it.

I would like to ask the Government a question about what they said before I come to our amendment, which is related to that. The Joint Committee said at page 9 of its report that the power that was given to the Secretary of State in Clause 33 of the Bill was extremely wide. They were concerned about the extremely wide powers given to the Secretary of State in this clause and so they felt they should ask the Secretary of State several questions about it, and in particular whether it was compatible with Article 6.1 of the European Convention on Human Rights. Before they could get replies, the Government came in, and I would I; ke to ask whether that was the result of what the Goliernment had felt. It may be that the Committee might conclude that. The Government came in in another place and suddenly produced a completely new version of Clause 33. The committee of both Houses looked at this clause and thought it was a great improvement but did not think it was satisfactory. It said, and I quote from page I I of its report: Nevertheless, we regret that the safeguards for fairness contemplated by the new clause 33(5)"— I am not dealing with that in my amendment but with the clause in general— would be left to be provided in subordinate legislation. It makes it difficult for Parliament as a whole, and for this Committee in particular, to form a view about the compatibility of proposed legislation with Convention rights when important safeguards are not included on the face of the Bill". We have been making that point over and over and over again with little effect in this Committee. It continued: If it will be possible to draft regulations specifying with sufficient clarity the circumstances in which a tribunal would be able to entertain a claim notwithstanding the late completion of the statutory dispute resolution procedures, we do not see why similarly drafted provisions could not be included on the face of the Bill". That is what we have been asking for. This would both further enhance legal certainty, and facilitate the task of Parliament in satisfying itself, where necessary, as to the proportionality of the restriction of Convention rights". It then says: We draw these matters to the attention of each House". I want to draw these matters to the attention of the Government. I am asking whether the Government have considered paragraph 24 of the report of the Joint Committee on Human Rights and what their answer is. Is the Joint Committee not right? If it were possible to set out draft regulations with sufficient clarity when they were produced as regulations, is it not clear that they could be put on the face of the Bill? Is it not right that that would further enhance legal certainty and facilitate the task of Parliament? Now that we have reached Clause 33, I believe that we are entitled to ask the Government what they feel about this important suggestion.

I turn to my amendment, which seeks to modify the effects of Clause 33 as it stands. It is an attempt to limit the wideness or generality of the clause and access the barriers in it. Amendment No. 149 concerns the role of tribunals. We are saying that: Where an employment tribunal considers it to be just and equitable, the tribunal [should be able to] accept a complaint from an employee even though it fails to satisfy the conditions stated in subsections (2) and (3)"— I shall come to that— and in such a case the chairman shall notify the applicant accordingly". In other words, we ask for a little flexibility. We say that, if the employment tribunal considers that it is just and equitable, even if these rules have not been applied completely and satisfactorily, it should have some kind of reserve power to grant that the applicant may go forward.

Amendments Nos. 147 and 148 deal with the delays which are imposed upon the clause. I have looked very carefully—I am sure that my noble friend Lord Wedderburn has looked even more carefully—but I have not found in any of the statements made in another place where the Government obtain their delaying power. It is possible to argue that there is a case for writing or asking for a letter and saying that, unless one has a letter, one cannot go forward. However, if the individual applicant has met that fairly small demand, why should there be a 28-day pause? That has never really been explained. Why should the delay not be 21 or 14 days? That is what we are suggesting because we are trying to be modest.

As regards Amendment No. 148, why is a person allowed only one month in addition to the usual originating period to complete the procedures? Why is the period not two months? Where do the Government obtain these figures? If we take the case where an applicant has done everything that he is expected to do and where the employer has done everything that he is expected to do but they have not reached a settlement, they cannot get together. No one appears to be doing anything at this point. It is not possible to involve ACAS. We have tabled a subsequent amendment which brings ACAS into this dead period, but the Government want a 28-day period during which nothing is done. Of course, one might say that in that 28-day period the parties may get together, but they may not. Where does the 28-day period come from? What is the explanation for the delay?

If one took a cynical approach one would say that, faced with a delay of 28 days—maybe the CBI takes this view—a significant number of workers will just get fed up, or they will be out of a job or they will say, "Oh. I can't be bothered with that for 28 days—nothing has happened". We should remember that that does not mean that at the end of 28 days you get to a tribunal. As I have said several times in Committee, no one knows how long it takes to get to a tribunal; that is kept very quiet.

We should ask the critical question from the moment when domestic settlement fails at stage 1 or from the moment when ACAS conciliation fails at stage 2; that is, how long does it take for the average case to get a hearing? Nobody knows; they do not tell you. If you ask they say, "It's very varied, very queer and very strange. We wouldn't know if we told you. You wouldn't be better off". In the end they say, "We don't collect it anyway".

We only know that the process is not quick. We only know by hearsay—by apocrypha—that it takes quite a long time in the end to get to a tribunal. Why, therefore, do we have to add a statutory, fixed and rigid 28 days? That is the question that is raised by the amendment.

I hope that the Government will consider the amendment and that they will try, in response to one of our many amendments to Clause 33, to come a little closer to the spirit and intention of paragraph 24 of the report. I beg to move.

Lord Wedderburn of Charlton

I follow my noble friend to say, first, how important the clause is generally. It is the crux of the apparatus of this unfair part of the Bill. Secondly, I have studied, as my noble friend suggested, every line of debate in Committee in another place and all the documents that the Government have produced. I cannot find, as he says, any explanation for the one-month zero delay.

In another place, the Minister, Alan Johnson, said that the Government were still thinking about the matter and that even when the worker had completed the necessary first step, they might require a four-week delay. He did not say for what. Perhaps he was thinking hopefully for a settlement of the case, because the object of this part of the Bill is to stop cases getting to tribunals. However, as my noble friend said, nothing has been vouchsafed as to why this is the right period. Have the Government done any research? Is there an unpublished research document perhaps, which shows that in 24 days you get more settlements than in 29? What have the Government done about this'? Have they some figures that we have not seen?

I believe that our amendment has almost as little justification as the Bill. We have chosen 14 days not because we know that there are more settlements in the first 13 than in the first 27 but to ask the Government about the rationale of the figure. Or have they simply clutched a figure out of the air in agreement with the CBI? Is that what the CBI wanted? Is that what it asked for? I ask the Minister seriously, is that what the CBI asked for? Perhaps he will tell us. If it asked for that, did it advance some reasons of which we do not know?

I strongly support the amendment. At least a reduction in the period will reduce the period in which a worker with a good case, who has completed the step that the Government demand of him or her, will be stopped from entering access to justice—stopped from entering the door of the tribunal—which is the only place where his rights can be enforced.

3.45 p.m.

The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton)

I shall deal with the amendments first, and then deal with the point of principle that was raised by my noble friend Lord McCarthy about human rights material. In dealing with the specific amendments, I hope I will be able to answer the questions that have been raised by my noble friend Lord Wedderburn.

As my noble friend Lord McCarthy said, under Clause 33, certain complaints cannot be presented to a tribunal under the Bill unless they meet a number of conditions, which are related to the statutory grievance procedure. We refer to these conditions, if I may, as the "admissibility criteria", which are set out in subsections (2) to (4) of Clause 33.

Two of the criteria have time limits within them. Amendments Nos. 147 and 148 seek to change those time limits. However, both my noble friend Lord McCarthy and my noble friend Lord Wedderburn have said quite frankly that the reason that they tabled the amendments is to try to elucidate an explanation from the Government about what the bases are of the chosen time limits.

The first criterion, at subsection (2), stipulates that the employee must have sent a Step 1 communication to the employer, setting out his or her grievance. The second criterion, at subsection (3), states that at least 28 days should have passed following the sending of that communication, before a complaint can be presented. Amendment No. 147—the first of the three amendments—seeks to halve that time limit to 14 days. Why did we set the 28 day period? Not because the CBI asked us to; there is no particular research that says that 28 days is the right course. In setting the 28 day period, we had to balance two considerations. First, we did not want to set a period that was too long and which would unnecessarily delay an employee's access to the tribunal system. We think that 28 days is not too long to wait. Secondly, we wanted to ensure that there was a sufficiently long period to provide a window of opportunity for the parties to try to resolve their differences between themselves.

Within our proposed 28 day period, it should be possible in many cases—obviously, however, I accept that this is not possible in every case, as my noble friend Lord McCarthy rightly said—for the parties to meet at least once and to establish a dialogue. They may also take other steps, outside the statutory procedure, to try to clarify and unravel their problems. In our judgment, a 14-day period would be too short. It would give inadequate time for the parties to work through issues before legal action is taken. We know that the making of a tribunal application can create new tensions and distrust between employer and employee. It often makes it more difficult for parties to find a solution to their difficulties for themselves. That is ultimately a matter of judgment, not of science. Our judgment was informed by discussions with the TUC, the CBI and others. We believe that on balance it is the correct one.

Amendment No. 148—

Lord Wedderburn of Charlton

I am most grateful to my noble and learned friend, who has explained how the Government considered the matter. Did they consider that what they call "their problem" for the employer and employee would involve a number of cases in which an unreasonable employer—there would be a number of cases, perhaps a minority—has subjected a worker to a detriment? My noble friends may perhaps be better able than I am to think of an example. Let us take a case in which an employer has unfairly and improperly set the employee on a course on which he gets no more overtime. Perhaps that has been going on for some weeks, after which the employee might say, "That is a breach of his contract of employment. You have treated me in a way that's unfair. So I write you a letter". Then the situation goes on. If it is an unreasonable employer, he may well not come to an accommodation and give the employee overtime working.

Have the Government considered what happens to the worker during those 28 days, when his income is reduced? Is it the Government's intention that workers should remain in the position of detriment and disadvantage? Of course, it is not their intention that they should remain at a disadvantage. My noble friend hopes that there will be a settlement, but I have cited a case where there plainly will not be a settlement. There are such cases. Why should the worker suffer because the Government have plucked a figure out of the air with no research? They have had plenty of opportunity to carry out some research on this matter. I honestly believed that I did not know about a piece of research which existed. They have carried out no research and they are going to subject workers to a detriment for 28 days because they consider that to be the right period. Is that really the position?

Lord Falconer of Thoroton

It is the position. Ultimately, it is a matter of judgement. In considering the correct period, the Government and those advising them have sought to take a balanced view in relation to all sorts of cases, as my noble friend Lord Wedderburn very frankly accepted, not with a view to prolonging unnecessarily detriment but with a view to trying to promote the use of grievance procedures to resolve settlements. In some cases, the effect of promoting the use of the grievance procedure in this way will be to bring the detriment to an end more quickly than would otherwise have been the case.

I turn to Amendment No. 148, which seeks to change the time limit set by subsection (4). This stipulates a time limit within which the Step 1 action should be taken. Perhaps I may again explain the thinking behind subsection (4), which I believe is the purpose of the amendment. At present, tribunals will accept an application if it is made within the normal time limit for making applications so long as the complaint falls within the tribunal's jurisdiction. In most cases, the normal or original time limit is three months. However, as a consequence of Clause 33, such previously admissible applications will no longer be accepted by tribunals if the applicants have not first sent a Step 1 communication to the employer or waited for the 28 days, as I have already mentioned. We want to give individuals a chance to retrieve the situation; in other words, we want to give them scope to make a second application which meets the new admissibility criteria where their original one did not.

To achieve that outcome, we recognise that it will often be necessary for the tribunal to grant an extension of the normal time limit within which an application should be made. Under Clause 32 the Secretary of State has the power to make regulations enabling tribunals to grant such extensions. We envisage that the time limit would normally be extended from three to six months.

However, extensions potentially create problems. An extension might mean that the employer would remain in ignorance of the employee's concerns for a long time; for example, as long as five months could go by before the Step I letter is sent. In our view, that is too long. Obviously, memories of the event which gave rise to the grievance might fade. The passage of time might make it more difficult to find a solution. Therefore, we have set a third criterion at subsection (4) which deals with this issue. It requires the employee to have taken the Step I action within the first month of the extended time limit for making applications. In most cases of this kind, that would mean that the employee should have taken the Step I action within four months of the event which gave rise to the complaint.

Amendment No. 148 seeks to extend that by a further month. As I have already indicated, and for the reasons given, we believe that that is too long. The later a grievance is aired, generally the harder it is to resolve a problem. The Bill is about encouraging dispute resolution. We do not believe that this amendment is compatible with that objective.

I do not take the view that we would somehow be rushing the employee in any way. Members of the Committee should remember that this criterion will come into play only where the employee has already sent an inadmissible application to a tribunal; in other words, he has already set out his complaint in writing. It should therefore be an easy matter for the employee to set out the grievance again in the form of a letter to the employer.

Finally, I should point out that subsection (5) enables tribunals to be given scope to use their discretion when applying this third criterion. We know that there may be circumstances where it might take some time for the tribunal to decide whether the Step 1 action has been taken. There may be some administrative delay. Importantly, it might take time for the tribunal to decide whether the employee should be exempted from the need to send the Step I letter. In either case, a tribunal might not decide that an application was inadmissible until four months or more had elapsed. We would envisage providing that in such circumstances the tribunal should not apply the subsection (4) criterion.

That brings me to the final amendment in this group—Amendment No. 149. This amendment gives the tribunal discretion to disapply the first two criteria as well if it considers it just and equitable to do so. The amendment will create new uncertainty. It would lead to extra processing by the tribunal system. Almost inevitably, it would greatly increase the number of preliminary hearings that needed to be held to decide whether an application was admissible. In fact, I believe that it would be necessary in all cases in which either criterion was not met. How else could the tribunal be satisfied that it was just and equitable to prevent an application from being made?

The criteria that already exist in the Bill are simple to understand. In most cases, they should be easy to apply. We recognise that there may be special cases in which, in the interests of fairness, employees should not be required to send the Step 1 communication. In particular, the exemption would apply to cases in which violence or severe harassment has occurred or may result. The exemptions would be set out in the regulations. Tribunals would need to decide whether an exemption should apply, where it is claimed. In difficult cases, we will be giving discretion to the tribunals to decide whether the exemption should apply.

Also, as I have explained, we shall be ensuring that people who have made an inadmissible application can come back with a second application at a later stage. We are not closing off all access to the tribunals; far from it. There is therefore no need in our view to give this extra discretion to the tribunals.

I turn to the point raised by my noble friend Lord McCarthy about the human rights issue. The noble Lord read paragraph 24 of the 12th report of the Joint Committee on Human Rights, which deals with the point about primary and secondary legislation. I refer noble Lords to paragraph 29 of the same report, which states: We conclude that the Secretary of State is entitled to take the view that the interference with access to the tribunal which the new version of clause 33 might cause would not be likely to impair the very essence of the right of access to a tribunal, and would therefore be unlikely to give rise to a violation of Article 6(1) on this ground".

Lord McCarthy

The Minister is not dealing with paragraph 24.

Lord Falconer of Thoroton

I am not; I want to deal with the matter overall.

Lord McCarthy

I want a response to paragraph 24. These matters were drawn to the attention of each House. Paragraph 29 has nothing to do with paragraph 24. Having drawn the matter—that is, that this issue should not be left to subordinate legislation—to the Minister's attention, will he deal with it in the Bill?

Lord Falconer of Thoroton

It is for the Committee to decide whether my noble friend Lord McCarthy is right. It is irrelevant if the Committee, having referred to the process issue, concluded in relation to the substantive issue that there was likely to be no infringement of human rights. The noble Lord, Lord McCarthy, might regard that as the more important of the two issues—the other being the process issue. That is a matter entirely for the Committee to judge. The one point at which I should certainly take issue with him is that the matter is "irrelevant".

On my noble friend's point about the process issue rather than the substantive issue, I certainly respect the view of the Joint Committee on Human Rights, but it is not always practicable to put provisions in primary rather than secondary legislation simply because the former course would demonstrate ECHR compatibility, which in fact the committee thinks is demonstrated anyway. That is the position in this case.

We want to consult properly on the detail of the procedures contemplated by Clause 33 before making regulations. To put those details on the face of the Bill would remove part of the procedure into primary legislation. That is not necessary, particularly when the committee said in relation to Clauses 29 and 30 that it broadly thinks there is compatibility. With respect to my noble friend, his point does not have that much force.

Turning to an entirely different subject, this may be a convenient moment for the Committee to adjourn for the Statement on Consignia. The Committee will resume immediately after the Statement. The noble Lord, Lord Goodhart, has now been speaking for three minutes, and I know that certain Members of the Committee are involved.

[The Sitting was suspended from 4.1 to 5.7 p.m.]

Lord Gladwin of Clee

Before my noble friend Lord McCarthy replies, I want to ask the Minister an unfair question. Will there be a definition of "present" in the regulations?

Lord Falconer of Thoroton

I understand that the employment tribunal regulations establish what constitutes presentation. There have been many cases about that, to which I am sure my noble friend alludes. One should not present a complaint to an employment tribunal; the presentation of a complaint is a legal concept in many other employment Bills. The matter has been frequently discussed in cases, and I think—I shall have to check this—that it is referred to in the Employment Tribunal Rules of Procedure. Perhaps I may write to my noble friend about that.

Lord Wedderburn of Charlton

Perhaps my noble and learned friend will take on board the fact that the regulations refer to presenting an originating application. That was the thrust of my noble friend's question.

Lord McCarthy

On Amendments Nos. 147 and 148, the Government say that they have no evidence and no research and that they do not know why they gave the figures; however, they did so. On Amendment No. 149, they said something about the matter being uncertain. To whom would it be uncertain? We are trying to get not certainty but a small window of chance for the applicant. If that is uncertain, that would be unfortunate. However, no one wants to know about that.

I take the Minister back to what he said—or rather, what he did not say—about paragraph 24 of the report of the Joint Committee on Human Rights. I do not want to go into paragraph 29. That paragraph was not discussing what was in paragraph 24. However, let us not argue about that.

Paragraph 24 recommends three things. First, it wants the provisions of Clause 33(5) to be included in the Bill. It states that it makes it more difficult if they are not on the face of the Bill; therefore, it would be easier if they were. It also seeks to establish whether those provisions are compatible with convention rights. Secondly, it says that if they can be put into the regulations, they can be put on the face of the Bill, so why does the Minister not put them on the face of the Bill? Thirdly, it says that it would facilitate the certainty and assessment of proportionality if that was on the face of the Bill. Those are three assertions — statements or, in a way, arguments—for putting the matter on the face of the Bill. Paragraph 25 states: We draw these matters to the attention of each House'". Correct me if I am wrong, but does that not mean that the Government must answer these three points? My question is: when is the Minister going to answer these three points? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 147A to 149 not moved.]

Lord McCarthy

moved Amendment No. 149ZA: Page 38, line 3, at end insert— (4A) Nothing in subsection (3)(b) or (4)(b) shall affect a complaint in respect of which the employer is in the view of the tribunal at the time of communication of the complaint likely to have acted unfairly under the provisions of section 98(2), (4) or (5) of the Employment Rights Act 1996 (c. 18) (general). The noble Lord said: The amendment is a very small attempt to get a little flexibility. It is, in effect, an attempt to advance fairness criteria—that, in effect, is what that part of the ERA refers to. That does not involve a question of discretion. The previous amendment sought to give the tribunal an element of discretion.

Our argument involves saying, "Suppose that there is prima facie evidence that comes to the tribunal that the employer has in fact acted in a way which is demonstrably unfair—that there is malice or bias or quite clear evidence of a legal right that is not being granted". Surely it should be the case that because of some technical reason, or accidental reason, that the applicant could not fulfil the terms required by the schedule, the tribunal should be able to say, "In these circumstances, we think the employer has not acted in fairness and therefore we should admit the case to a hearing". I beg to move.

5.15 p.m.

Lord Wedderburn of Charlton

The type of case to which the amendment refers might be as follows. An employee working in a workplace of, let us say, 20 workers is aggrieved because his contract has been broken by the employer in some way that is detrimental to him. We could say that he has not been paid his wages or that there has been an illegal deduction from his wages. However, being a careful sort of chap, he gets written statements from all other 19 employees to say that they know that that is the case. He then goes one further and he gets an affidavit from his friend, who happens to be a local solicitor—officer of the court—showing that it is as near as one can prove a certainty, or it is at any rate likely, that I he case is open and shut.

The amendment uses the word "likely" because it adopts the standard of proof that is used in cases of interlocutory injunction in which the High Court will give an injunction in a trade dispute argument. If that is good enough for making an injunction against a union, we thought that it could be the standard of proof required, whereas a serious question to be tried must be proved by affidavits and written statements.

We believe that at that point, the tribunal should have not just the discretion but the obligation to say, "This is a case we really ought to hear. This is not a case where, whatever else, the worker should be shut out from access to justice".

Indeed, I venture to suggest that were the worker to be shut out such a case would not be found attractive in Strasbourg. I submit to the Committee that this is a small, confined, precise but persuasive amendment.

Lord Falconer of Thoroton

The amendment seeks to empower the tribunal to dis-apply the relevant time limits where the employee's complaint relates to unfair dismissal and in the view of the tribunal it is likely that the employer acted unfairly. I assume the purpose, rightly, is to ensure that in these cases, the employee can access the tribunal system as early or as late as he chooses.

Perhaps I may make one point absolutely clear right from the outset. It is not our intention to apply the admissibility criteria to most unfair dismissal cases. My honourable friend Mr Alan Johnson made that absolutely clear, repeatedly, in another place. Dismissals should be processed via the relevant dismissal and disciplinary statutory procedure. It is, therefore, entirely inappropriate to expect the employee thereafter to initiate a grievance on the dismissal in order to access the tribunal system.

Lord Wedderburn of Charlton

My noble and learned friend appreciates that he has just said that the amendment will apply in the case of a grievance which arises out of such a situation. It is not an attempt to apply it to unfair dismissal as such.

Lord Falconer of Thoroton

The point I am making is very important. In the vast majority of unfair dismissal cases the admissibility criteria do not apply. There is one category where we expect that it will; namely, in cases of constructive dismissal. I assume that the example of my noble friend Lord Wedderburn was one in which there was unlawful deduction of wages and the employer had not sought to dismiss.

If he explicitly dismissed, there would be no problem anyway. If, however, there had not been a dismissal and the issue was whether it was a constructive dismissal, the point that is being made by this is that in addition to collecting the 19 witness statements—to which my noble friend referred—the employee might sensibly write a letter to the employer raising the problem. In that case, provided that 28 days have gone by since he sent the Step 1 letter, he would not be debarred from making the unfair dismissal point.

We believe that there is good reason to apply the time limits to these cases. First, in many instances, the sending of a Step 1 letter, as I have described, should be the first time the employer is acquainted with the employee's complaint. We should give the parties the opportunity to sort out their problems before a tribunal application is made. In our judgment, as we have said in an earlier amendment, 28 days is the right length of time for this. Secondly, I see no justification for not applying the time limit at subsection (4)(b). If we waived that limit, it could in fact encourage the employee to delay the taking of any action under the statutory procedures for many months. That surely cannot be a way to establish dialogue and resolve problems as expeditiously as possible.

There is another problem with the approach suggested in this amendment. It rests on the need for the tribunal to reach speedy assessments of the strength of the employee's case. I cannot see how that can be done quickly without a preliminary hearing to assess the employer's response. In fact, it might take more than 28 days to reach such difficult decisions. If so, this approach might lead to greater delays in accessing the tribunals. I hope that in the light of those comments, my noble friend will consider withdrawing his amendment.

Lord McCarthy

Perhaps we have construed the amendment wrongly. The point we are making is, after all, an amendment to Clause 33. That clause does not deal with unfair dismissal; it deals with complaints and grievances. The example that my noble friend Lord Wedderburn gave was not to deal with unfair dismissal. The way I saw this amendment—and if I saw it the wrong way, perhaps we need to take it away and rewrite it on Report—is that it is to introduce a criteria of fairness in. It is trying to say the employer must be reasonable. It is trying to say that the employer must investigate. It is trying to say that if the tribunal has evidence that the employer has transgressed in this respect, it is able to say that it will hear the case. As I see it, it is not narrowly confined to an unfair dismissal situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Razzall

moved Amendment No. 149A: Page 38, line 7, at beginning insert "Subject to subsection (6.J), The noble Lord said: Amendment No. 149A is a small drafting amendment and should be taken with Amendment No. I 57A. The point being made is a simple one and this is designed to ensure that an employee does not lose any rights under this clause when the complaint relates to the breach of a statutory right. The rationale is a simple one. The employers are already on notice that they should comply with their statutory duties. As these are the minimum standards of employment protection required by law, we can see no real justification for requiring the employee to bring this to the attention of the employer as a requirement of making a claim. Therefore, these amendments are designed to ensure that the employee does not suffer where the complaint relates to the breach of a statutory right. I beg to move.

Lord Falconer of Thoroton

These amendments deal with the situation where the employee may be victimised as a result of exercising the statutory procedures. They seek to ensure that the admissibility criteria—that is, barring somebody from the tribunal—are not applied to cases where there are reasonable grounds for the employee to believe that he would suffer detriment if he invoked the statutory procedures. In such cases, the tribunals would be empowered to admit applications even though the employee had not instigated action under the statutory grievance procedure and had not waited 28 days.

I have said more than once that we recognise there may be cases where it would be unreasonable to expect individuals to send a Step 1 grievance letter to the employer before being able to access the tribunal system. We do not believe that such exemptions should be widely drawn. The writing of a letter is not generally an intimidating step to take. In any case, the employee would need to set out his grievance in writing if he subsequently makes an application to a tribunal. However, we believe that exemptions should apply in cases where there is a real threat that violence or other serious forms of harassment could result. We intend to set out those exemptions in the regulations.

These exemptions would go some way to meet the concerns of the noble Lord. Employers who might physically intimidate their employees are often the sort who would consider taking other forms of detrimental action against their staff.

We are reluctant to introduce a wider exemption along the lines of the amendment. The amendment would considerably increase the scope for employees who want to avoid confronting their employer to try to claim an exemption on the grounds that they might suffer -any detriment", however minor. It would lead to more preliminary hearings by tribunals to ascertain if there were "reasonable grounds" for employees to believe they would be victimised in some form or another.

I hope I have reassured the noble Lord to some extent and that he will reconsider his amendment.

Lord Razzall

I thank the Minister for his response. Between now and the Report stage I shall read what he said in Hansard and think about whether we should bring this back in a slightly different form to meet the more restrictive circumstances that he mentioned. I take the point about the subjective nature of the drafting at present. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton

moved Amendment No. 150: Page 38, line 8, after "(4)" insert "if The noble Lord said: I shall speak to Amendments Nos. 150 and 151 together. Amendment No. 150 is a proposed drafting amendment and I hope that the noble and learned Lord will view it favourably. We do not think the Bill reads very clearly—in fact, I found someone the other day who was reading it for pleasure and became rather confused.

Amendment No. 151 refers to the Government's own logic and refers to page 38, line 12. Clause 33(6) states: An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), if …the breach is apparent"— from what the employee has said or if, the tribunal is satisfied of the breach as the result of his employer raising the issue of compliance". We think that that should apply only where the employer has raised the point quickly. We think that he should do so within the week, so that everyone knows where they stand.

That raises a question that perhaps the Committee should have investigated a little more fully. It is prompted by the question that my noble friend Lord Gladwin asked earlier. What does it mean to say that an employee is prohibited from presenting a complaint? It seems to mean that he is prohibited from presenting an originating application, but how is the tribunal to know when he is prohibited? Subsection (6), to which the amendment refers, seems to say that the tribunal can get the knowledge either from what the employee has said—that is, subsection (6)(a)—or, at subsection (6)(b), it can be satisfied as a result of the employer raising the issue of compliance. Such compliance presumably involves compliance with those provisions—that is, subsections (2) to (4). The employee will not know whether the tribunal refuses to allow him to present the complaint, as the section puts it, until the employer has answered it. That, we think, is another reason why the employer should be required to come along and present his information quickly. If that requires a further amendment to the regulations, as it might in terms of the notice and appearance, that could be done—as the Government are so fond of doing—by regulation. I beg to move.

Lord Falconer of Thoroton

I want to make two brief points. The first relates to subsection (6) and the proposal to put in the words "if, but only if", to emphasise that those are the only two circumstances that will prevent tribunals from hearing complaints. We do not think that that is necessary—we think that it is perfectly clear as it is.

The second point involves the question whether there should be a time limit within which an employer has to raise the issue referred to in subsection I6)(b). We think there should be such a time limit and we would intend to put one in—dare I say it—by regulations, which can come under subsection (7). We are not sure that seven days is the right period—it sounds too short—but we will consider what the time limit should be when we come to issue regulations under subsection (7).

Lord Wedderburn of Charlton

I am grateful to my noble and learned friend for what he says—not the first part, because those provisions are not very clear as they read. Never mind; our tiny little amendment is rejected. But the spirit of our second amendment is, as I understand it being accepted. Of course, we have got it wrong again—why should the worker have to wait only seven days? He will have to wait longer, it seems. There he is, unjustly treated and unable to have access to justice. We shall return to this matter in the context of human rights in a later amendment. We have not finished with human rights yet in relation to access to justice. He will have to wait for longer than seven days. We regret that that is going to be inregulations and we would like to know where we stand now. However, in light of what my noble and learned friend said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

[Amendment No. 151 not moved.]

Lord Wedderburn of Charlton

moved Amendment No. 152: Page 38, line 15, at end insert— (6A) An employer against whom a complaint has been made which relates to a jurisdiction to which this section applies shall not be permitted to enter an appearance to the proceedings where—

  1. (a) the complaint concerns a matter to which a requirement of Schedule 2 applies, and the requirement has not been complied with, or
  2. (b) the requirement has been complied with but 14 days have passed since the day on which the employer received a copy of the originating application.
(6B) Where subsection (6A) applies—
  1. (a) the chairman of the tribunal shall notify the employer accordingly that no appearance may be entered: and
  2. (b) rule 3(3) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.1. 2001/1171) shall apply only with the exclusion of paragraphs (a) to (e)."
The noble Lord said: The object of this amendment is to produce, in this evil Clause 33, which is going to become Clause 32, an even-handed evilness. The Minister is amused by that notion. I do not know why because there is a sense in which the clause is based on such notions.

The clause prohibits an employee from access to justice if the conditions of the clause are not satisfied. That is why it was considered so carefully against the provisions of Article No. 6 of the convention by your Lordships' Joint Committee on Human Rights. That is why there was such a long and profound consideration of Clause 33, together with Clause 31.

The employee suffers those disadvantages. It seems to us that the clause would be more even-handed, on the Government's own logic, if the employer had some obligations under it. The basic obligation of the employee is to complete the statutory imposed procedure. If that is the hypothesis, the worker must do what the procedure requires if he is going to get to a tribunal. That is sauce for the goose. However, why, as sauce for the gander, if the employer does not complete what the statutory procedure requires of him—both as a matter of statute and we know as an implied term of all his contracts of employment—should he be in better case?

What is the equivalent and parallel disadvantage that the respondent suffers compared with the disadvantage an applicant suffers? The applicant cannot present his case. The only possible parallel and similar disadvantage for a respondent is to lose his case. Therefore, the amendment provides that when the employer has a complaint made against him which relates to the jurisdiction within the compass of Section 33—that is, within the compass of Schedule 4— (a) the complaint concerns a matter to which a requirement Schedule 2 applies, and the requirement has not been complied with, or (b) the requirement has been complied with but 14 days have passed since the day on which the employer received a copy of the originating application". My noble and learned friend may not like the wording of paragraph (b), but we have inserted 14 days because that was the logic of our previous amendment to amend 28 days to 14. However, if the Government prefer 28 days as a price of accepting the amendment, we shall be quite happy.

In those circumstances, the employer is not permitted to enter an appearance; that is to say, he loses the case. That is the precise parallel to the applicant who when he did not complete the requirements of the schedule he could not even present the case and he could not possibly win it.

We have added to that as new subsection (6B), that in those circumstances where notice of appearance is not permitted—that is exactly parallel to the employee not being allowed to present his case—the chairman of the tribunal should notify the employer accordingly. We then include amendments to Rule 3(3) of the Employment Tribunal rules, which we apprehend will be necessary if in such circumstances the rules were not to be made absurd.

I could go into the detail of what we exclude, but noble Lords will by now be such experts in the details of the employment tribunal regulations and rules, that I doubt it is necessary for me to do so. I beg to move.

Lord Falconer of Thoroton

As I understand the amendment, subsection (6A) is saying that where the employer has not completed the statutory procedure, he shall not be allowed to enter an appearance and defend the proceeding. I am not sure whether subsection (6B) is intended to apply only where he has not completed the statutory procedure.

Lord Wedderburn of Charlton

Yes, where (6A) applies.

Lord Falconer of Thoroton

Therefore, it is not a situation which would apply only where he has failed to enter an appearance. There also has to be the failure to comply with the procedure.

Lord Wedderburn of Charlton

My noble and learned friend is right to the extent that the new subsection (6B) begins where subsection (6A) applies. Subsection (6A) applies in the circumstances set out.

Lord Falconer of Thoroton

Namely, the failure by the employer to complete the procedure. The way in which my noble friend puts it is that this would be "even-handed evil". He says that if the employee is debarred where he has not completed the procedure, so should the employer be debarred by parity of reasoning. Parity of reasoning would equal not being able to defend, just as the employee cannot bring the proceedings.

There are two answers to that. First, the employee is not debarred where he has failed to complete the procedure. He is debarred only where he has failed to send the Step I letter and wait for the 28 days to pass. The way it has been put in argument is "complete the procedure", so it would not be even-handed at all. Secondly, we do not believe in any event that it would be appropriate to debar the employer from defending because the purpose of the tribunal is to deal with disputes that have not been resolved. The purpose of Clause 33 is to promote resolution of these disputes by, where there is a grievance, the employee at least beginning the grievance procedure.

We do not accept the basic detailed premise because completion is not the same as simply Step 1 and the 28-day period. Secondly, in any event we do not think there is parity in the way that my noble friend puts his case. In the light of that, I would ask my noble friend to consider withdrawing both amendments.

Lord Wedderburn of Charlton

I shall, of course, since the Government object, have no option but to withdraw the amendments. However, my noble and learned friend points out a way in which the amendment should have been longer. We have tried to keep our amendments as short as possible—like our debates. It is true that it would be better to say that where an employer has not complied with the procedure, and where a certain period has passed, the Government would have 28 days; or where they have not complied with it, or after whatever period has passed, the employer should not be allowed to defend.

It seemed to me that my noble and learned friend accepted that if we had got it right in terms of the delay period, there would he a parallel.

Lord Falconer of Thornton

No, I did not. I again failed to make myself clear. First, I made the point about completion of procedure as opposed to one step only. Even if that point had been dealt with, the proposal would not be the right way to deal with the problem. Those were my two separate points.

Lord Wedderburn of Charlton

I concentrate on the second argument. The first point is a matter of wording and the right time period. If we had got that right, it still would not be appropriate. Why is that? It would not be appropriate because then our amendment would be precise and even-handed. If you stop the worker from bringing a case, within which is the proposition that you stop the worker from winning his case because he does not do what you want, you will not stop the employer from bringing his case because it does not do what you want. That is all there is to it. The words of the amendment could no doubt be improved and I am very grateful to the noble and learned Lord for improving them.

The second argument he deploys is surely little less than bizarre, except—and I have to say this and I hope that my noble friends will note it—it be on the philosophy of Part 3 of the Bill. I refer to the fact that workers will suffer and employers will not because there is a desperate need to prove to somebody— whether it is the CBI, I do not know—all these dreadful hearings at employment tribunals are going to be stopped. That is what lies behind it, and the only way you can stop that is by being unfair to workers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton

moved Amendment No. 153: Page 38, line 15, at end insert— ( ) In the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171) in Schedure 1, after rule 6 there shall be inserted— (6A) Where the Secretary is of opinion that the originating application or other complaint is in breach of section 33 of the Employment Act 2002, he shall give notice to the applicant of this opinion and the reasons for it only after obtaining a decision attic chairman that his opinion is correct." The noble Lord said: In moving Amendment No. 153, I speak also to Amendment No. 155 to which my noble friend Lady Turner of Camden in particular will also speak.

Amendment No. 153 is in our view very important. I am advised by those who are most experienced in the administration of employment tribunals that it is a matter which already causes some concern ever as the procedure and practice of tribunals stand now.

It raises this point. When a worker communicates—in the future, I suppose, on the necessary form, or at the moment in any sort of writing—with a tribunal office in his locality, or as near as he can get to his locality, the decision about what to do with his originating application is often taken by the secretary of the local tribunal.

I would like to read the dominant rule in Schedule 1 of the Employment Tribunals Regulations which is of particular importance here. It is Rule 1(3): Where the secretary is of opinion that the originating application does not seek, or on the facts stated therein, cannot entitle the applicant to a relief which a tribunal has power co give, he may give notice to that effect to the applicant stating the reasons for his opinion and informing him that the application will not be registered unless he states in writing that he wishes to proceed with it". So what the secretary can do at the moment is reply to the communication which purports to be presentation of a complaint and say, "It seems to me that this is not something that you ought to press and I am not going to register it for the moment". But he has to do so if the applicant then states in writing that he wishes to proceed with it.

That cannot possibly be the situation in regard to the prohibition in Clause 33 against presenting a complaint because that does not operate with the proviso unless the applicant wishes in writing to proceed with it. The prohibition is absolute within the terms of Clause 33(2), (3) and (4).

Practice at the moment has given rise to a certain amount of concern amongst a number of tribunal chairmen about—to put it neutrally—the burdens which fall upon the secretary of a tribunal, who, as I understand it, is normally not as experienced as a chairman of an employment tribunal needs to be in questions of law or the application of law to the facts, which is what matters.

As I understand it, this will not at the moment be improved by the intervention of any legal officer—a strange being introduced previously in earlier legislation by this Government into employment tribunal practice. We have not heard much about legal officers. One question I want to ask of the noble and learned Lord is: how many legal officers are there and what are they doing? Will they play a role in communicating the fact that the application or complaint is prohibited from being accepted?

The amendment refers to the secretary forming an opinion—and he is bound to be the first person who forms an opinion—that the complaint or originating application is in breach of Section 33. It may be that my noble and learned friend does not like the words, in breach of section 33". It should perhaps read, is prohibited under section 33". Then the secretary gives notice to the applicant of that opinion only after obtaining the decision of the chairman that he is correct. The amendment states that for a very good reason. We are discussing a communication which says that a tribunal has no jurisdiction to accept the presentation of a particular complaint. Perhaps my noble and learned friend will clarify the following. If this is not a matter of jurisdiction, it is at any rate a matter of enforceability. The tribunal is to say to the applicant, "You may have a complaint but it is not enforceable because you cannot present the complaint", which is a materially different way of putting it.

In that event, some very complex, difficult questions of law and fact—mixed questions of law and fact—will arise. Of course, we cannot tell exactly what the evidence will be because we do not know what the new forms are going to he like. This shows the interaction between Clause 25 and Clause 33. If we knew what the new form was going to be like, we could say, "Well, if they see he has answered the question this way or that way, they might have an initial view"—"they" being first of all the secretary and then, I imagine, inevitably, the chairman. Someone is going to have to speak on behalf of the tribunal to say, "You cannot enter the doors of this tribunal with this complaint".

No more serious prohibition of access to justice can be imagined. I do not care whether the condition is sending a letter or sending a copy of the letter or standing on one's head! Whatever the condition is, it is a prohibition on access to justice. Therefore, in our view, the decision should be that at least of the chairman. We have not asked for a pre-hearing review in all such cases, although my prediction is—and my noble and learned friend will know this very well; he has been instructed in simple cases of this sort more times than he has had breakfast—if you get instructed in such a case and you are told you cannot present your complaint, you are going to ask why. Further, if they will not give in, I suppose—and perhaps my noble and learned friend will confirm this—your only recourse is to judicial review. You cannot apply to the EAT because there is nothing to appeal against. I may be wrong but will my noble and learned friend just say whether your only recourse is to judicial review? He is briefed; he is instructed in such a case; he has a worthy client and he wants to get to the tribunal. What does he do? He might say, "The secretary told me this and I really do not think the secretary is qualified to interpret Section 33, which will become 32, of the Act".

It might be a little fairer, at the very minimum, if the person who took this all important decision about whether the portals of justice are open or closed were at least the legally qualified chairman of the tribunal itself. It is simply in quest of that fairness of procedure that this Amendment No. 153 is moved. I beg to move.

5.45 p.m.

Baroness Turner of Camden

An amendment to which I had intended to speak—Amendment No. 155—is grouped with Amendment No. 153 because they deal with a very similar issue. As we know—we have been discussing it all afternoon—Clause 33 purports to set out the conditions under which an employee may not present his claim to a tribunal. Amendment No. 155 is very simple. It requires that where the relevant subsections apply and the applicant is not permitted to present a complaint, the chairman of the tribunal must notify the claimant and also set out the reasons for the decision.

It hardly needs to be said that a person who has got as far as attempting to put his case to a tribunal is very seriously committed and very seriously concerned. Such a decision is not taken lightly. In an earlier debate, the noble Baroness, Lady Gardner, who I am sorry to see is not in her place this afternoon, said that sometimes people do not turn up. However, I am sure that the noble Baroness would agree that that is comparatively rare. Generally, people are most concerned about their case, sometimes to the point of being totally obsessive about it. That being so, it surely follows that, if they are not permitted to have their day in court, individuals should be entitled to have the reasons set out and for that to be done authoritatively. In my opinion, the appropriate person to do so is the chairman. I hope that the amendment will commend itself to the Minister.

Lord Falconer of Thoroton

I hope that I can put my noble friends' minds at rest. It is not the intention of the Government or the Bill that the secretary should be able to take the final decision on whether a complaint is barred by Clause 33. Ultimately, that must be for the tribunal to decide, although it may be a decision which a chairman can take on behalf of the tribunal.

Where the tribunal—whether sitting together or via a chairman—makes such a decision, we do not envisage that an appeal could not be made to the employment appeal tribunal. We believe that it should be appealable to that tribunal on the usual grounds. It would obviously be absurd if a special procedure were required in relation to that.

Equally, in certain circumstances, we do not consider that it would be wrong for a tribunal or the secretary to a tribunal to write to an applicant and point out that his or her application may be in breach of Clause 33 or that it does not comply with Clause 33. Where that type of advice is given, we do not believe that it would be necessary for the secretary to refer to the chairman or to the tribunal. However, I accept the basic point underlying the remarks of both my noble friends Lord Wedderburn and Lady Turner that a decision in relation to barring under Clause 33 should be taken by the tribunal.

I also accept in principle the point made by my noble friend Lady Turner in Amendment No. 155 that, where a decision to bar is made, normally one would expect a reason to be given for the barring. It is inconceivable that a reason would not be given in such a circumstance because it is such an important decision. I do not know whether one needs to spell that out in regulations, but I imagine that one does not spell out in regulations that in every single interlocutory or similar application reasons need to be given. In those circumstances, it is simply assumed that a chairman will give reasons. I hope that my noble friends' minds are set at rest by the fact that procedurally the principles that we are adopting in relation to this matter are very similar to those that underline the two amendments.

Lord McCarthy

In that circumstance, can the Minister say why he cannot accept Amendment No. 155 and place this issue on the face of the Bill?

Lord Falconer of Thoroton

I do not believe that it is either appropriate or necessary to do so. Where regulations deal with procedure, which they do in relation to the employment tribunal, it should be dealt with in so far as it is necessary to do so there rather than here.

Lord Wedderburn of Charlton

I understand what my noble and learned friend says. As I understand it, it will be made clear, at least in an amendment of the employment tribunal regulations schedule on the Rules of Procedure, whether they are technically regulations under this section. Obviously, from what he says, I take it that that must mean that there will be some addition; otherwise, under the existing rules that I read out the position of the secretary would be quite absurd. It would suggest that the employee would have a say in whether or not the case should proceed. Obviously, that will not be the case here—the tribunal will decide. I am delighted to hear that. However, I doubt whether that will result in less work for the tribunals and less cost to the respondent. I do not believe that the CBI will be very pleased to hear this.

If the tribunal reaches such a decision—this is the logic of Section 32 as it will be, Clause 33 as it is—the respondent will manifestly have to be told. My noble friend was right—the matter could be subject to an appeal to the employment tribunal. Every time that a prohibition is pronounced under Clause 33, there could be an appeal to the employment appeal tribunal. I am not sure that that is good news to my noble friend Lord Gladwin, who is, of course, a lay member of the EAT. However, it is good news to me and, as it were, it is good night to the amendment, because I accept the spirit in which my noble and learned friend has addressed it. There will be regulations setting this out and it will be made clear that reasons will be given. I do not regard this in any sense as being a victory for the amendments. It has just shed a little more light on the situation. We are delighted that advisors who are trying to gear up for this new world of prohibition will have a little more information on which to begin drawing up their agenda. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton

moved Amendment No. 154: Page 38, line 15, at end insert— (6C) This section has no application to a complaint by reason of which the tribunal does or could entertain an application for interim relief. The noble Lord said: The amendment stales that, where a complaint could give rise to the remedy of interim relief, Clause 33 should not apply to it.

Interim relief is an important remedy. It is exceptional, because the employment tribunal has the power to maintain an applicant in his or her employment pending the hearing of an unfair dismissal claim. I immediately say that that could therefore apply to a case that is an unfair dismissal claim on the one hand, including a grievance claim on the other.

It arises if the applicant is making a claim. The reason for dismissal could be related to trade union membership or activities, a position as a health or safety employee representative, including working time purposes, a position as a trustee of an occupational pension scheme, the making of a protected disclosure or the exercise of rights relating to trade union recognition and de-recognition. It also applies now—after the 1999 Act—to cases that raise the exercise of the right to be accompanied at a grievance or disciplinary proceeding. Section 12 of the 1999 Act makes the question particularly relevant here, because it applies to grievances as well as discipline.

If a worker claims that interim relief could apply and he is processing a grievance at the same time, the tribunal has to make certain other requirements. It has to be certified by relevant persons as being a suitable case and the tribunal must look at it quickly because it must be lodged within seven days. That is much quicker than most of the time limits which the Government consider appropriate in regard to the clause.

The tribunal can then make an interim order, either of reinstatement or re-engagement—I take the two together—and, if the employer does not attend the hearing or refused reinstatement or re-employment, the tribunal can make an order for the interim continuation of a contract of employment. That is a very important jurisdiction and it can arise in regard to grievances that are mixed with disciplinary and dismissal problems. That is important to the worker in a variety of ways. Just to mention one of them, it maintains his statutory continuity of employment. He also has certain rights to compensation.

In Committee in another place, the Minister, Mr Johnson, said on 18 December: We might want to allow for a delay in the disciplinary procedure should an employee under notices of dismissal make an application to a tribunal for interim relief while the procedure is taking place".—[Official Report, Commons Standing Committee F, 18/12/01: col. 181.] I expect my noble and learned friend to say that in regard to disciplinary procedure, regulations, which are the delphic fount of all wisdom under this Bill, will tell us that something like that might happen. However, it is important to know whether a similar provision will be made in regard to the application of Clause 33. No one seems to have told the Minister in another place that the problem could arise where a disciplinary dismissal also gave rise to a complaint under a grievance procedure. I read in a previous sitting the paragraph in the ACAS code that points that out. ACAS knows very well that grievances and disciplinary procedures are not mutually exclusive.

The problem of interim relief has been highlighted by the recent case of Parkins v Sodexho Ltd [2002] IRLR 109. In that case, Mr Parkins was an employee of Sodexho, when he was summarily dismissed. He claimed that he had been unfairly dismissed because he complained about a health and safety matter—which does happen—because he had made what is now called a "protected disclosure", and that he had been dismissed in breach of contract as well as improperly as a health and safety representative.

The question of interim relief arose and the EAT—to whom the matter had to be appealed because the tribunal considered there was no power to grant interim relief—in effect held that that was not correct, although on the facts, it remitted the case to another tribunal to decide certain issues that arose. The case has already given rise to a considerable amount of comment in regard to the application of interim relief, especially in connection with protected disclosures. They are the subject of a later amendment, which was tabled by my noble friend Lord Borrie, to which we shall come. It is, therefore, a matter of some importance to make it clear that where interim relief—that important remedy for workers who are unjustly treated on the list of grounds that I have set out—can be given the remedy of relief on the complaint that they wish to bring in regard to a dismissal in connection with which a grievance procedure might have to be operated under Clause 33. In that case, we submit that the prohibition should not apply. I beg to move.

6 p.m.

Lord Falconer of Thoroton

This important amendment gives me an opportunity to explain the position. It concerns the interaction between the admissibility regime and the established system of interim relief. Speed is of the essence where interim relief comes into play. I can therefore fully understand my noble friend's concern about the matter. Interim relief applies to particular cases of unfair dismissal—for example, in cases where the reason for a dismissal was the carrying out of the duties of a health and safety representative.

As I have already made clear, with one exception, we do not intend the admissibility regime to apply to cases of unfair dismissal. Because the admissibility regime will not generally apply to unfair dismissal cases, it would not interfere with the system of interim relief. The exception to that rule concerns the case of constructive dismissal. In relation to the decided case in the employment appeal tribunal, to which my noble friend Lord Wedderburn referred in his argument, there will be no impact at all because the admissibility criteria would not apply to it. That is because, as I understood from the extract my noble friend read from the case, it was not a constructive dismissal case but a summary dismissal case. Therefore, there would be no problem.

However, we recognise that the issue my noble friend raises in connection with interim relief has significance in relation to the constructive dismissal case. In devising our detailed proposals on the application of the admissibility regime to constructive dismissal cases, we will be mindful to avoid limiting access to interim relief in those particular cases, which are limited in number, where it is currently potentially available. This means that we will consider making special provision for this category of case when drafting the regulations under this clause.

I hope that in the light of those reassurances my noble friend will feel much reassured.

Lord Wedderburn of Charlton

I am delighted to hear what my noble and learned friend says and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 155 not moved.]

Lord Wedderburn of Charlton

moved Amendment No. 156: Page 38, line 15, at end insert— (6E) This section shall not affect the right of an employee to present to a court a complaint concerning a breach of his contract of employment, or the conduct or outcome of such proceedings. The noble Lord said: It could just be that the Government's reply to Amendment No. 156 is that it is not necessary. But it is. It says that the section, which is still Section 33, is not to affect, the right of an employee to present to a court a complaint concerning a breach of his contract of employment, or the conduct or outcome of such proceedings". The matter arises because in Clause 30, the Government chose—for reasons which they have not yet explained in legal terms—to make the statutory procedures and the requirement to observe them, an implied term of every contract of employment. That structure therefore impacts upon two quite different jurisdictions. Obviously, the place in which a breach of the contract of employment is remedied is the ordinary court, county court or High Court. Until a few years ago, that would have been an end of it. However, a few years ago the jurisdiction of the employment tribunals was extended—quite sensibly, in my submission—to include cases based on the breach of a contract of employment, other than cases that arise from breach of health arid safety obligations.

The Bill, therefore, in making the obligation to observe the statutory procedures in Schedule 2 a contractual obligation—or, as some have analysed it, a contractual as well as statutory obligation—impacts upon both jurisdictions. It is this question of the double jurisdiction which makes it necessary to be absolutely clear that nothing in Clause 33 can possibly prejudice the position of the employee in the jurisdiction of the ordinary courts based on common law for breach of contract of employment.

It may be that the Government do not want to make that clear because in doing so one also makes clear that the employee who can afford it, or who has the opportunity, might be better advised to go into the county court rather than into what was supposed to be the cheap and easy access to remedy employment injustices; the employment tribunal. So we might confirm, merely, that there will be an increase in common law actions in the ordinary courts. However, surely the intention is not that there should be an increase in litigation, but that if there be litigation it is open to the employee to go to the ordinary courts, untrammelled by the conditions of Clause 33.

It would be expected of me to add the comment that it is fairly rare for modern employment protection legislation to make the obligations of the parties into implied contract of employment terms. It was done in the Equal Pay Act 1970 and it arises under the National Minimum Wage Act 1998, Section 17. It can also he said to arise under the Trade Union and Labour Relations (Consolidation) Act 1992, Section 185. However, in those cases, clear rights are being set out and, for various policy reasons, implied into the contract of employment.

In this case there are rights and obligations which are not at all clear. Indeed, every time we probe them we are told that we will understand them only after we have seen a whole flurry of regulations. So this is a very strange and uncertain case. The regulations could say something that might affect the county court or High Court case. If' the Government are so sure about their drafting of the regulations, they would no doubt say that will not be so. But why not give a guarantee that it will not be so? The only guarantee to be given is in the Act itself—here the Bill itself—which this amendment seeks to make plain.

There is another point which is of importance in regard to this amendment, and it is this. Because the statutory procedures will be part of the contract of employment, and when they are not fulfilled there will be a breach of the contract of employment, the common law courts—or the appellate courts generally—may have to reconsider recent case law, and it is no doubt that the Government have given some thought to that consequence.

Let me put it this way. The implied term which the Act will require—namely, that the parties act properly under the statutory procedures, in particular in regard to discipline as well as grievances—mean that for the law generally the employer is being required to deal properly and adequately with grievances and also to act properly in regard to dismissal. It may be that the Government took the course of implying that, as an obligation in the contract of employment, because of the recent cases of Goold (Pearmak) v McConnell [1995] IRLR 516 and Waltons & Morse v Dorrington [1997] IRLR 588, which is no doubt known to the Minister.

In both those cases, the EAT, particularly Mr Justice Morison, held that as a matter of common law the contract of employment had within it the implied term, that employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance". The requirement that they state grievance procedures in the Employment Rights Act, as it now is, was held to support the view that it was a contractual obligation to provide procedures for grievances—a point much overlooked by many small employers.

If that is the reason why the Government have included the statutory procedures as implied terms in the contract of employment, then, in my submission, it follows that the employer is under an obligation to act properly in a general sense with regard to dismissal. The power of dismissal must be moderated within the confines of the procedures; so, too, must the power and duty to have regard to grievances.

Many commentators already take the view, and I suspect will soon give vent to their views in print, that this will require your Lordships' Judicial Committee to reconsider the decision in Johnson v Unysis [2001]. House of Lords ICR 480. In Johnson v Unysis a decision was made by your Lordships' Judicial Committee that—if I may express it in this way—one cannot complain of a procedural or abusive dismissal as a breach of contract by reason of the way in which it was conducted. The statutory procedure, as an implied term in the contract of employment, introduces precisely the opposite concept—that is, that one can complain where it is not conducted properly and one can complain where grievances are not conducted properly.

Therefore, it is an implication into the law of contract of the most profound kind which, one suspects, has never been thought through properly by those who have drawn up the Bill because no one anywhere has ever explained in Routes to Resolution, in the background document, in the responses to consultation, in the Committee in another place or anywhere else why they took the very interesting and profoundly important view that this should be implied in the contract of employment. It is a matter of great importance for the law generally to reaffirm and make clear on the face of the Bill that nothing in Clause 33 affects the common law jurisdiction with regard to actions for breach of a contract of employment, or, as the amendment states, their conduct or outcome. I beg to move.

6.15 p.m.

Lord McIntosh of Haringey

The amendment before us is relatively limited and I can deal with it fairly straightforwardly. The issues which my noble friend Lord Wedderburn raises about the nature of contracts of employment and the common law, and the examples which he gives, with which, as he knows, I am deeply familiar—he did not rise to that—in particular, with regard to the relationship between Clauses 30 and 33, are of very much wider significance. I do not wish to comment on them off-the-cuff but I want to think about them between now and Report stage. This might be an issue on which he would be willing to meet with and talk to officials and Ministers between now and Report.

Lord Wedderburn of Charlton

I should be delighted to do so if my noble friend would accept that Part 3 of the Bill should be withdrawn.

Lord McIntosh of Haringey

My offer was not made on that basis. Having said that, and having been as helpful as I believe it is appropriate for me to be, I can be more specific about the amendment. The amendment deals with the ability of an employee to complain to a court that there has been a breach of contract. Under general legal principles, a person who can bring the same claim in two legal forums has to choose which he will use. That applies to an employee who can bring certain claims both in an employment tribunal and in the ordinary courts just as it does to anyone else. If they bring proceedings in the one case, it is accepted that they cannot bring proceedings in the other. The purpose of that is to avoid duplication of claims.

I cannot see that Section 33 interferes with that position. Indeed, unless it specifically sought to interfere with that position, I do not think it could. If an employee makes an admissible application to the tribunal, the tribunal would accept it and the person would lose his ability to make the same claim in the ordinary courts. Clause 33 does not change that position in any other way—it simply adds to the reasons why a claim may be inadmissible before a tribunal, which is not the subject of this amendment. If a person made an inadmissible application to the tribunal, the tribunal would not accept it. In those cases, I can confirm that the individual is free to go to the courts or to make a second, admissible application to the tribunal. His options are protected.

Lord Wedderburn of Charlton

We shall look very carefully at what my noble friend said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy

moved Amendment No. 157: Page 38, line 15, at end insert— (6F) The Secretary of State shall by regulations make provision for this section not to apply to inappropriate cases. (6G) In subsection (6F) inappropriate cases include cases where the complaint includes—

  1. (a) allegations of violence, intimidation, bullying, sexual or racial discrimination or harassment, other forms of unlawful harassment, more than one unlawful deduction from wages, claims based on redundancy and such other matters as the Secretary of State specifies by order; and
  2. (b) a complaint which relates to a collective grievance.
(6H) In this section a collective grievance includes any grievance which a recognised trade union has raised, or proposes to raise within seven days, with an employer. The noble Lord said: This is in some ways our most ambitious attempt to narrow and define the impact of this clause. I argue that most of what we want to achieve arises out of the scattered remarks of Ministers in various places. In the amendment we refer to the Secretary of State. We accept that this has to be done by regulation because we cannot put detail on the face of the Bill about how the different origins of grievance would be specified. Nevertheless, there should be provision in regulations for the provisions not to apply to inappropriate cases.

In the amendment, at proposed new subsection (6G)(a), we set out a possible list of inappropriate cases. It refers to allegations of violence, intimidation, bullying, sexual or racial discrimination or harassment, other forms of unlawful harassment, more than one unlawful deduction from wages, claims based on redundancy and such other matters as the Secretary of State specifies by order". That is a general collection of points, which I shall discuss in more detail in a moment. New subsection (6G)(b) refers to, a complaint which relates to a collective grievance". In subsection (6H) we state what we mean by collective grievance. It states that it, includes any grievance which a recognised trade union has raised, or proposes to raise within seven days, with an employer". I cannot say what the logical link is between those various inappropriate categories. I could posit or assume one, but I believe that at one time or another the Government have made statements suggesting that they have some series of factors making them want to take certain things out. Sometimes they seem to have suggested that the individual applicant will not even want to write a letter or will not want any contact with the employer, perhaps in a case of violence or harassment of some sort. At other times they have suggested that there might be a very strong prima facie case of illegality—for example, the refusal to pay redundancy payments. On other occasions, they have said that there could be a strong possibility of distress if the full rigour of the waiting time period is insisted upon.

Collective bargaining is a special case because the Government have seen that where there is a recognised trade union and a procedure for dealing with grievances on a collective basis—although sometimes on an individual basis—one does not want a parallel system in which non-unionists or other trade unionists want to have separate decisions, or separate grievances, in a context in which there is a procedure for the collective disposal of grievances. I argue that all of those matters come from the intimations and statements of Ministers.

That prompts one to wonder, beyond the rather shallow attempts on my part to say what the matters all have in common, how the Government see the issue. Clause 33 appears to begin with very general statements. On reading it, we might think that every conceivable grievance is going to come under the list. We also have a general statement about regulations and how the Secretary of State could take certain things out. and put other ones in, which we get in Bills of this kind. Then we have other statements, including, for example, that from Mr Johnson in Committee in another place on 18th December. Another statement was made by the noble Lord, Lord Sainsbury, at Second Reading. Certain categories are pushed out and talked about. One sometimes reads about that in the newspapers.

Even if the Government decide—they may very well decide in this way if the future resembles the past—that our list is no good, they might tell us, in general terms, where they got their list from. What are the general characteristics that lead them to qualify the impact of the schedules? I beg to move.

Lord Wedderburn of Charlton

I support the amendment and address myself in particular to proposed new subsection (6G)(b). This concerns what are sometimes called "collective grievances". Rather than read out all the relevant words, I know that Members of the Committee will have closely studied what went on in committee in another place, so I simply refer to columns nos. 122, 180, 181 and 183. On those occasions the Minister, my honourable friend Mr Johnson, stated again and again that it was not the intention of the Government to apply the procedures to collective redundancies, or as he put it elsewhere, collective issues, where the issue is collective and where there is, industrial action where they arise out of a collective dispute"—[official Report, Commons Standing Committee F, 18/12/01, col. 183.] When an employee decides that he has a grievance that results from unlawful action on the part of the employer, he has to decide what to do. If he is sensible, he will be a member of a trade union, and he will have advice from the local representatives and more senior representatives of his union.

I make no complaint that the Bill, when it is enacted, will give rise to a great deal of difficulty for trade union representatives. They have had to cope with more than this legislation, but there is a peculiar difficulty because a worker comes to him and the union representative says, "I see that, that's not fair. I think as a matter of fact that it's illegal. You could go to a tribunal. But hang on a minute. Have other people got the same grievance?" The worker would say, "Yes. In fact, nine-tenths of us think that this is monstrous. It has happened to all of us". Is that a collective grievance that is not going to fall within Clause 33 as it is, and Clause 32 as it will be?

We have tried to prompt the Government—almost to provoke them—into thinking about this matter because our proposed new subsection (6H) offers a definition. It is just a kite to fly. Our definition refers to a grievance that a recognised trade union has raised, or proposes to raise, within the week, with an employer. Is that what collective grievance is going to mean'? It is no good telling us that this has all got to wait for divine guidance to rest upon the officials i n the Department of Trade and Industry who will ell us in tablets of stone marked "Regulations" that this is what it means. There are people who are worrying about this now. They want some guidance. They want a word. They want a hint. They want to know what is in the Government's mind, as my noble friend has said, and that is why I support this amendment.

6.30 p.m.

Lord McIntosh of Haringey

I start by saying how much I welcome the form of this amendment. This amendment does not seek to write the regulations on to the face of the Bill but to constrict what the regulations shall do by setting out a statement of what they should cover without attempting to make the wording "set in stone", if I may borrow the analogy of my noble friend Lord Wedderburn. To that extent, 1 find it helpful. Indeed, as I have taken part in the proceedings of this Committee, there have been a number of occasions when I have said to the Committee, "We agree with what you want but we have to resist the idea that what you want should be written on the face of the Bill rather than be in regulation". This amendment seeks to achieve what it wants not by writing the regulations but by specifying what they should include. To that extent, it is very helpful.

Having said that, I have to say that, first, we do have regulatory powers. We have powers in framing the regulations to make exemptions to the admissibility regime, but that is rather a formal point. The amendment enables the noble Lords, Lord McCarthy and Lord Wedderburn, to specify a wide range of things which should be excluded either because they consider them to be inappropriate or because they raise issues of collective grievance.

Lord McCarthy

I thought that I explained the matter. We have actually done some research on this; it is not off the tops of our heads. I do not know what I would put in because I do not understand the principles on which the Government put things in and take things out. This is not our list. It is the Minister's list. It is what the Minister said. If the Minister likes, we could bring back all the references tomorrow, but this is what, at one time or another with varying degrees of precision, the Minister has said. I am saying, "Stick your regulations where your mouth is"!

Lord McIntosh of Haringey

I do not disagree with that. I was coming to what we propose to put into regulation and what we do not propose to put into regulation. I thought I was doing so in a fairly constructive way.

It is our intention to be sparing in setting exemptions. As we have argued with other amendments, most employees should have little difficulty in fulfilling their obligations under this clause. They just have to raise a grievance in writing and wait 28 days. They would, anyway, need to set out their grievance in writing when they make an application to a tribunal. No one is suggesting that they should be exempted from meeting that requirement of the tribunal system. The employer would soon find out the grievance in any case. So we need to ask ourselves what special grounds may arise where it would be unreasonable to expect an employee to set out his complaint to the employer a little earlier.

We think that there will be some special cases. The threat of violence or other forms of serious harassment fall into this category. We do not want to force employees to raise a grievance as an individual complaint, if it has already been addressed as a collective issue by a union on their behalf. That is the second broad category. We intend to cover these two main categories of exemption in the regulations. There may be others which it would be sensible to add. For example, the amendment about interim relief may raise the need to exempt a particular set of cases. However, we cannot accept that the scope of the exemptions should be drawn as widely as this amendment implies. If we followed this approach, an exemption could be claimed in a large proportion of cases. It would mean that the admissibility regime would never apply, for example, to any cases involving race or sex discrimination. It would seriously diminish the purpose of the clause.

If there is any opportunity to compare the matters which I have listed as being exemptions we are prepared to accept with the list in this amendment between now and Report stage, I should be very happy to do that. If that means that we should be putting an agreed list, or a list which is acceptable to the Government, on the face of the Bill in this form—in other words, as a constraint on the regulation-making power—I am prepared to consider that as well.

Lord Wedderburn of Charlton

I am grateful that my noble friend is prepared to consider things, but have I understood him correctly? I wanted to ask about the previous remark about not including all cases of sexual or racial discrimination or harassment, so that when an employee—a man or a woman—is being sexually discriminated against, and more particularly where they are being sexually harassed at the place of work, they must write the letter and then wait 28 days and go on being harassed before they can get near a tribunal or have any sort of legal redress. Have I understood that correctly—they must wait and be harassed?

Lord McIntosh of Haringey

There could be other reasons in the same case which would lead to exemption from the admissibility provisions.

Lord McCarthy

One sees how deep the hole is beginning to look. The more one tries to specify the boundaries of these things, the worse it becomes. We are now told—this is not what the Minister said in Committee—it is not violence, it is not intimidation, it is not bullying, it is not sexual or racial discrimination that is being inappropriately excluded: it is some cases. What cases, and for God's sake, why? As my noble friend says, it could be the little cases which one can let go forward, but the serious cases one will keep. But how the hell is one going to distinguish one from the other?

There are all the anomalies. We have picked up the sex and race discrimination issue. We have not found disability. But by what logic do you leave disability in and take at least some cases of sex and race discrimination out? The noble Lord mentioned interim relief. That is another one—I will write that down. Every time a Minister gets up he mentions one, but, of course, he always leaves one out.

I am all for meeting people, talking to people and trying to draw up a list, but I beg the Government to try to find out the principles—I know that they do not like principles—behind which they are putting things in and taking things out, and the principles behind which they are saying that some of these matters apply in all cases, some of them apply in only half of cases and some are hardly included at all. We have had nothing from the Government on any kind of rationale of what is admissible and inadmissible. I do not know whether or not the Minister wants to reply, but I give him the opportunity.

Lord McIntosh of Haringey

One could explore the possibility of looking for principles, but looking at this list and looking at the things which the Government intend to put into the regulation. I am not sure that I can see a principle behind them.

Lord McCarthy

Here we have a Bill with no principles. The Minister said that, not me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 157A not moved.]

6.45 p.m.

Lord Wedderburn of Charlton

moved Amendment No. 158: Page 38, line 17, leave out paragraph (a). The noble Lord said: With Amendment No. 158, I apprehend that I would be right to speak to Amendments Nos. 159 and 160. There is a sense in which Amendments Nos. 159 and 160 have become even more important in the course of our debates today than Amendment No. 158. Perhaps I may explain.

Amendment No. 158 would leave out two lines of the Clause 33(7), which allows the Secretary of State to make provision for the application of the procedures. There is a sense in which that was meant to raise some of the points which have already been canvassed in our debates. Therefore, I concentrate on Amendments Nos. 159 and 160, which will be a saving of time, but on which I can therefore spend perhaps a little longer than might be expected. These amendments raise questions of human rights and questions of ministerial power.

The Bill at the moment states that the Secretary of State can make provision about what constitutes compliance with the statutory procedures. It also states that the Secretary of State can make regulations to, make provision about circumstances in which a person is to be treated as having complied with", the statutory procedures.

Those regulations, as I read it, will decide matters of law as applied to particular facts. Normally, when one sees in an Act of Parliament a requirement that a person should complete a procedure, the interpretation of whether that person has completed a procedure would be a matter for the courts, or here, perhaps, for the tribunals. It is a judicial matter of applying that formula in the Act of Parliament to the facts.

A Henry VIII clause properly so called—and perhaps we have previously misused the phrase—attempts to take out of the purview and jurisdiction of the court that decision as to the application of the law in the Act of Parliament and give it to a Minister. One thought that one had seen the end of crude Henry VIII clauses. Paragraphs (b) and (c) of Clause 33(7) are crude Henry VIII clauses. They purport to give to the Minister the power to decide whether the law has been complied with or not. As such, we object to them, and we believe, too, that they are highly suspect if one applies Article 6 of the European Convention on Human Rights, now incorporated by the Human Rights Act.

Perhaps I may explain. To say that the Secretary of State can decide what is compliance is, in our submission, improper under the most elementary principles of the rule of law. Our amendment does not attempt to exclude the Secretary of State entirely. Our amendment says that the Secretary of State should not have the power to decide what is a completion in a particular case, or set of cases, but should have the right—since the Government wish to interpose the Secretary of State's view on these matters—to issue a code of practice for guidance on the matter. That, as I understand it. is unexceptionable. Tribunals can look at the code of practice and take account of it in deciding the judicial question of whether or not the Act has been contravened. In both cases, and in both paragraphs, we propose that the power to decide this judicial matter should not rest with the executive but that a power to give guidance—if that is what the Government want—should be introduced instead.

The second reason why these paragraphs are improper is that they offend the principles in Article 6 of the European Convention on Human Rights and, when one looks at the proceedings of the Joint Committee of your Lordships' House and the other place on the Bill in regard to human rights, one finds exactly why.

On 24th January 2002, the Secretary of State sent a letter to the Joint Committee. In it she set out, quite correctly in my submission, the fact that Article 6 of the convention was relevant. The article states that: In the determination of civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law The Secretary of State writes: The express rights given by Article 6(1) are: the right to a fair hearing, the right to a hearing within a reasonable time, the right to an independent and impartial tribunal established by law, the right to a public hearing (subject to certain qualifications) and the right to public pronouncement of judgement. In addition, the Strasbourg court has interpreted Article 6(l) as giving the following implied rights: the right of access to the courts"— I interpose that that is particularly relevant to this clause, just as is the right to have it decided by the court, the right to be present at an adversarial hearing, the right to equality of arms; the right to fair representation of the evidence; the right to cross-examine witnesses and the right to a reasoned judgement". It was on that basis that the Joint Committee drew up its view that Clause 33, on its face, may well not offend Article 6. My noble friend Lord McCarthy has already quoted paragraph 24 of its report. which brings the following to the attention of Members of the Committee. I note particularly the formula which the Joint Committee used at paragraph 25: We draw these matters to the attention of each House", which places an obligation on Members of the Committee to consider the matter here, or if they wish, on Report.

The matter which the committee said it wished to bring to the attention of noble Lords was, in particular. Clause 33(5). That gives the Secretary of State power to make regulations and is, in particular, interrelated to Clause 33(7), especially paragraphs (b) and (c) to which we here object.

Perhaps I may read again what the Joint Committee on Human Rights says in paragraph 24, Nevertheless, we regret that the safeguards for fairness contemplated by the new clause 33(5) would be left to be provided in subordinate legislation. It makes it difficult for Parliament as a whole, and for this Committee in particular, to form a view about the compatibility of proposed legislation with Convention rights when important safeguards are not included on the face of the Bill. If it will be possible to draft regulations specifying with sufficient clarity the circumstances in which a tribunal would be able to entertain a claim notwithstanding the late completion of statutory dispute resolution procedures, we do not see why similarly drafted provisions could not be included on the face of the Bill". I pause to say that that sentence particularly centres on the question of completion of statutory dispute resolution procedures, which the Secretary of State in paragraph (b) of Clause 33(7) lays claim to decide for him or herself. The Joint Committee continued: This would both further enhance legal certainty, and facilitate the task of Parliament in satisfying itself, where necessary, as to the proportionality of the restriction of Convention rights". In what it decided, the Joint Committee was able to address the clause as it stands on its face, and it is quite true that, perhaps rather squeakily, the Government succeeded in persuading it that the clause on its face possibly complies with Article 6. Members of the Committee will have noticed from the passage which I read that, naturally, the Joint Committee had to leave the question of proportionality because it could not possibly address that unless it had a much bigger debate about the exact nature of the problem which Clause 33 is meant to address. At any rate, the Joint Committee report does not discuss in detail the question of proportionality, to which I wish to turn.

The question of proportionality is fundamental to the application of European law—and now of British or United Kingdom law—in the question of Article 6 and proper process before courts and tribunals. It was recently proved in the case of Fogarty v The United Kingdom, [2002] IRLR 148, in a judgment by majority of the European Court of Human Rights in Strasbourg.

The question arose as to whether a young woman who had been employed in various jobs by the United States Embassy could sue the Embassy on grounds of sex discrimination because her application for a job had been refused following a long and complex relationship with the Embassy, which had been her employer. Although at first the Embassy defended the claim, it ultimately entered a plea that, as an emanation of a sovereign, and therefore being immune to process, it could not be sued in the British courts or tribunals. Finally, the court in Strasbourg accepted that claim. However, it is relevant to this case because the court also said, on page 14 of the report: The right of access to court"— that is, to a court or tribunal— is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 para. 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved". The court goes on, The court must next assess whether the restriction was proportionate to the aim pursued". Later, it states: The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account". In this case, the court did so because sovereign immunity is a well-known rule of international law.

Therefore, here the issue arises not of sovereign immunity but of whether the prohibitions and limitations upon access to justice are proportional. One can only judge—the committee did not go into this—whether they are proportional if one asks what is the mischief to be avoided or what is the problem to be tackled. The Secretary of State conveniently set out precisely and exactly the problem which she said Clauses 31 and 33 sought to tackle. In her letter of 24th January 2002, which is an appendix to the Joint Committee's report, she says: "You"—that is, the Committee— asked for an explanation of the considerations underlying the policies on admissibility of claims and adjustments to awards by employment tribunals. These are jointly the main enforcement mechanism for the use of the statutory dispute resolution procedures the Bill would require. The mischief addressed in clauses 31–33 is an over-ready resort to employment tribunals. According to a 1998 survey of applications, in 37 per cent of claims no attempt had been made in the workplace to resolve the problem before the application. In 62 per cent of cases the parties did not meet to discuss it". There we have it. The Government's objective is based on flawed statistical reports, which did not reach us until a week before Second Reading; in the second case, a report was placed on the Library on the Friday before we debated it early the following week.

At Second Reading, my noble friend Lord McCarthy and 1 advanced a case, whose essence was that the research done for the Government—which ultimately found the light of day just before we could discuss the Bill and long after the other place had had an opportunity to discuss it—did not sustain the figures. Moreover, they were not a good basis for any notion of an over-ready resort to applications to the employment tribunals; they did not sustain the CBI's complaint of a compensation culture; and they were in fact no basis upon which legislation could be based.

We did that at columns—I refer Members of the Commitee to them again—1370 to 1374, and columns 1387 to 1389. Indeed, we thought we had made progress. This was only two days after the Secretary of State had written to the Joint Committee on Human Rights. On 26th February—two days after her letter—my noble friend Lord McIntosh of Haringey made a relevant statement. I shall quote the whole sentence so that he does not think I in anyway misrepresent his comments. He said: My Lords, I challenge the view that it is a central reason for stopping the applications". I must pause to say that I had just put to him a question whether he still thought that, as I put it, three in five of the applications to tribunals come from applicants who have not attempted to resolve the problem directly. That was the interpretation the Government had put on that in their consultative document. He went on, As regards the word 'attempted', I cannot tell from the wording of the survey whether such attempts took place or not. I imagine that in a large number of cases if a meeting had been attempted it would have been achieved, or certainly if written communication had been attempted it would have been achieved. I do not believe that significant numbers are involved in that regard. This is a distinction without a difference. Frankly, the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms and I do not think we should spend any more time on it".—[Official Report, 26/2/02; col. 1404.] I would not spend any time on it; the survey is not worth it. However, the Secretary of State relied on it, and relied on its misinterpretation in the case that she put to the Joint Committee on Human Rights. Therefore, the proportionality that the committee, alas, had to consider—if it did consider it; it does not expand upon it—would be a proportionality against a totally false case—one that had never properly been discussed in Parliament, one that had never been published and one that had not been debated until two days after her letter. Yet, so far as I know, no communication was sent to the Joint Committee on Human Rights, although, two days later, the Minister stated clearly, the issue of this survey has been taken as far as it can be taken. It has little significance in policy making terms". In that event, doubts arise in view of the real facts, the research of Dr Burgess and his colleagues as to the real reason for the inexorable rise of employment tribunal applications since 1988 and the real research that has been done. I say that with respect to those who did the research of SETA and the awareness study, in a sense it is not their fault that their results have been misused by the Government—they have been flagrantly misused. It states on page 24 of SETA, these figures must be interpreted with care". No care has been taken by Government spokesmen until my noble friend—I pay tribute to him for doing so—said on 26th February: this survey has been taken as far as it can be taken. It has little significance in policy making terms". Therefore, the issue of proportionality remains outstanding. It has not been addressed by the Government because they have not addressed reality in constructing Clause 33. That led them, in their desperation to stop 30,000 to 40,000 applications to tribunals, to give to the Secretary of State power to decide judicial issues, such as what constitutes compliance with the law. I beg to move.

7 p.m.

Lord McCarthy

I want to make two points in support of my noble friend, who has gone back—in this amendment he must go back—to the SETA survey. I am as sick of the SETA survey as I am sure the Government are. My first point is about that. My second point relates to paragraph 24 of the report by the Joint Committee on Human Rights. This must be the third time it has been quoted this afternoon.

On the SETA survey, the central point that I find bizarre is that even today we have never been told the actual questions posed. I know that the noble Lord in civilian life is a survey man, and I know what he would say to somebody who told him of the conclusions that had been drawn from a survey but they did not tell him the actual question posed. One does not know what to make of it. If one does not see the question, one cannot evaluate it or say, "What a silly question" or "That is a good question". One has not got off the ground. We have not yet been told. We have had three successive versions but you will not find them in SETA and you will not find the question that was posed in SETA. No serious social scientist would take any notice of a survey of that kind.

My second point relates to paragraph 24 of the report. This is the third time we have read it out. I ask the Minister a simple question. He knows much more about the mores of this House and Parliament than I do. What does paragraph 25 of the report mean? What does it commit the Government to doing? It states: We draw these matters to the attention of each House". Does that mean that the Government never need to answer it? The Minister has not answered the point, although we have asked it three times. There are three separate questions in paragraph 24 but he has not answered them at all. Do we have to ask them again at Report? Does paragraph 25 mean absolutely nothing? If it means absolutely nothing, tell me now.

Lord McIntosh of Haringey

No point was made about Amendment No. 158, and therefore I will make no point in response.

On Amendments Nos. 159 and 160, there is one matter which I am extremely reluctant to raise again for the reason I gave at Second Reading. I do riot want to talk further about the SETA survey. I expressed my view as a survey researcher about interpretations of questions which are in the report. It just asks what happened. I expressed a great reluctance to agree with any interpretation which made assumptions about what had been attempted when the question was not about what was attempted. The question was about what happened. The reason why it happened or did not happen was not covered by the questionnaire. To that extent, I have said that as far as I am concerned there are no policy implications from that survey which need detain us.

With regard to the issue of the Joint Committee on Human Rights, I have read paragraphs 20 to 30 of the Joint Committee's report, and I have read them with great care. The main conclusion I draw from those paragraphs is that the committee welcomes Clause 33 as a considerable improvement in transparency on what went before. I read with interest and concern the points that are made, in particular in paragraph 24. about the terms of Clause 33(5) which the noble Lord. Lord Wedderburn of Charlton, read out in detail. I read all of that with great care, but I read with particular care the conclusion of paragraphs 29 and 30 which is: We conclude that the Secretary of State is entitled to take the view that the interference with access to the tribunal which the new version of clause 33 might cause would not be likely to impair the very essence of the right of access to a tribunal, and would therefore be unlikely to give rise to a violation of Article 6(1) on this ground". Paragraph 30 states: The same considerations persuade us that the Secretary of State is entitled to conclude that any interference clause 33 might generate with the right to enjoy possessions, under Article 1 of Protocol No. 1 to the ECHR, would be likely to be justifiable on the grounds outlined in paragraph 17, above, in respect of Clause 31". Therefore, having paid great attention to the argument, what I have read out to the Committee is the conclusion of the Joint Committee on Human Rights. On that basis, I have no hesitation in confirming that my noble friend Lord Sainsbury of Turville was right to sign the affidavit under Section 19 of the Human Rights Act that in his view the Bill is compatible with the European Convention.

I turn now to Amendments Nos. 159 and 160. Subsection (7)(b) provides powers to introduce regulations specifying what constitutes compliance with the requirement to send a Step 1 letter to the employer. Subsection (7)(c) provides powers to introduce regulations which deem this requirement to have been met even when it has not occurred. Both powers are very important. The latter can be used to exempt certain categories of grievance—say, cases involving the threat of violence—from the admissibility regime.

We have been debating that matter. My noble friends have been urging us to increase the number of cases where we would say in regulation that there should be an exemption from the admissibility regime. Subsections (7)(b) and (7)(c) are no different in principle from those which my noble friends would wish to introduce into the Bill. They are not judicial issues. There is no interference with the judicial process here. What we are trying to do in regulation, just as we are trying to do on the face of the Bill, is to provide certainty as far as is possible as regards Parliament's intention in referring matters to the employment tribunals. These amendments would seek to replace the specific regulation-making powers by the power to introduce codes which give only guidance to the tribunals.

I notice that there was no discussion whatever of the issue of guidance and codes of practice in the way in which the amendments were introduced. The aim of the amendments is to give greater scope to the tribunals to apply the admissibility criteria as they think fit.

We have argued throughout our discussions that we want to create as much certainty as we can in the application of our statutory procedures. It is not just that we want to; Parliament is under a duty to do that. We do not wish to leave too many questions to the discretion of the tribunals; that would create uncertainty. Our policy is to use regulations to define the detail of how the statutory procedures should be applied across different circumstances. We believe that this is feasible and desirable and, as regards the application of the obligation to be compliant with human rights, I remind Members of the Committee that we have an obligation to provide, and say so, that regulations themselves, as well as primary legislation, are compliant with the European Convention.

Of course, the Committee may express its own views on the matter, just as the House may express its own views, and that will be possible when the regulations are drafted and when we have the full public consultation on the regulations before they come to Parliament. However, it would be unsatisfactory, I put it to the Committee, to have the detail partly in regulations and partly in the form of guidance. It would be unfair to the tribunal and it would not fulfil the responsibilities of Parliament.

Lord Wedderburn of Charlton

I suspect when I read that in Hansard I shall find that it is one of the most extraordinary speeches made by a Minister of the Crown for many years. As regards both matters, I did not ask my noble friend for his view as a survey researcher; I asked him for his view as Minister.

First, he objects to taking out of the Bill provisions which give to the Secretary of State the right to decide what is compliance with statutory provision. If that is not a judicial matter, which, if you like, in a Henry VIII way, the Government are trying to take away from the courts and tribunals and give to a Minister, I do not know what is. My noble friend says he wants certainty. What is compliance?

Under the Bill, compliance is whatever the Minister says it is. That is certain enough, once he says something. But, as for the courts and tribunals, they are not to have what he calls a discretion to decide what the Act means. I cannot believe that my noble friend really wants to leave it there. If he leaves it there, he is stating on behalf of the Government that the Government insist that the person who decides whether this Act, on particular sets of facts, because they will have to be set out, has been complied with or not, is not the Court of Appeal but the Minister.

That is the first of point. The second is even worse. This is perhaps the most serious moment in which this Grand Committee has met. The Minister said that the Joint Committee in the end—if I may put it this way—gave a clean bill of health to Clause 33, as it now is. In Clauses 28 and 29 it did, I have said that. It did not, however, withdraw the injunction to your Lordships, who sit as a Committee of the House, to pay attention to the fact that it would have been better to put things on the face of the Bill which are not on the face of the Bill. That point has been made. But, much more seriously, it reached its conclusion on whether or not it could accept the new version of Clause 33 on the basis of being misled. Of course it was misled. I will quote the letter again. The Secretary of State wrote in the letter to the Joint Committee, You asked for an explanation". The Joint Committee deliberately asked for this; it did not come across it by chance in the dead of night. The letter continues: You asked for an explanation of the considerations underlying the policies on admissibility of claims"— that is, I interpose, on the prohibition of admissibility of claims in Clause 33— and adjustments to awards by employment tribunals…the mischief addressed in clauses 31–33 is an over-ready resort to employment tribunals. According to a 1998 survey of applications"—. I cannot go on; she repeated the horrendous model of whom the vital statistics are 37–64–62. She said that is why we have Clause 33. My noble friend today says that neither of these surveys, and in particular the SETA survey, has no policy implications, so he is withdrawing the basis on which the Joint Committee was invited to form a judgment. Therefore, its judgment, in its view I have no doubt, might well be regarded as vitiated.

If the basis of not the SETA survey itself, but the misleading interpretation of the SETA survey put in evidence by the Government and repeated by the Secretary of State as the basis of the clause, has no policy implications now, when it was the policy implication then, how can we possibly regard the Joint Committee as not having been misled? How can we rely on a conclusion which the Government have procured by putting in front of it something which now is withdrawn? I shall give way to my noble friend.

7.15 p.m.

Lord McIntosh of Haringey

I did not say there were no policy implications. I specified where there were and where there were not policy implications.

Lord Wedderburn of Charlton

I shall read Hansard with interest. I wrote down that my noble friend had said this no longer had policy implications. I repeat what he said at Second Reading: The issue or this survey has been taken as far as it can be taken. It has little significance in policy making terms".—[Official Report, 26/02/02; col. 1404.] I repeat the words "little significance". It was the case that the Secretary of State put to the Joint Committee. The Joint Committee was misled. The House has been misled. The House of Commons was not allowed to debate the matter because the surveys were not published. The Government in this matter are in a terrible state. I get no joy from the fact that my Government have led themselves—I believe, under the misleading arguments of the CBI—to regard workers as being the cause of all the trouble in regard to employment tribunals because, as the Secretary of State said, there has been an over-ready resort to employment tribunals". What is that but the interpretation of SETA writ large?

It really v, ill not do for the Government to come here, having in effect renounced at any rate any great significance of these surveys, or rather their interpretation of these surveys. I do not wish to attack the people who actually engage in the research. If anything we have said previously does so, we would not wish that to stand, I am sure. Although, as my noble friend has said, they would have done better in this particular case on page 24 of SETA to repeat all the questions, as they did elsewhere in the report. But the Government seized on this report. They did not take care with its interpretation. They put it to the Joint Committee as the basis of Clause 33. It is now quite plainly vitiated and it is now quite plainly a misleading basis. The Government should go away and re-think this clause and the part of the Bill on which this clause is based. Workers will suffer an injustice from these provisions and, if it is not to be said anywhere else, by heavens we shall go on saying it here until the Government see sense and accept what they now see as the case. These figures are not a good basis for policy and, therefore, they cannot be a good basis on which the Joint Committee reached its conclusion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 159 and 160 not moved.]

Lord Wedderburn of Charlton

moved Amendment No. 161: Page 38, line 25, after "modifications" insert "not less favourable to the employee The noble Lord said: This matter can he dealt with briefly. We apprehend that the Bill would be improved if the powers of the Minister to make regulations were limited just a little more than the clause suggests. We believe that the modifications which the Secretary of State could make, as set out at page 38, line 25, should be limited at the very least by an ability to amend the statutory dispute resolution procedures in ways that are not less favourable to the employee.

We touched upon this point previously. I took it that my noble and learned friend Lord Falconer of Thoroton was not wholly averse to the argument that we can all understand what is meant by a procedure which is not less favourable to the employee. I cited parallels in other parts of the law where similar phrases have been interpreted. Both Amendments Nos. 161 and 162, which would insert a similar phrase at page 38, line 27, and would give power to amend in a manner not less favourable to the employee than the provisions in the statutory procedures, surely raise matters to which the Government—I say no more than this—should give consideration.

Indeed, I have been puzzling about a point that was raised in a previous debate. I asked my noble and learned friend what procedure he could imagine that he would like to see that would be less favourable to an employee than the procedures of Schedule 2. Can my noble and learned friend, with his experience, imagine a procedure which would be less favourable to the employee than, say, the modified procedures on grievance and disciplinary procedures?

Disciplinary procedure does not require that the employer should investigate what he is doing. It does not require him to say why he does not suspend the worker who is going to lose his job and his income. It merely states that he must notify the employee under the terms of the disciplinary procedure of Schedule 2. In misconduct cases—whatever they are—he must simply notify the employee in writing and the dismissed worker will only have the right to respond. I can imagine what that response might often be.

Therefore, surely the Government do not want the Secretary of State to have the right to introduce a legally compulsory procedure which is less favourable to workers than Schedule 2. If they do, they had better say so. I beg to move.

Lord McIntosh of Haringey

I take it that I am responding to Amendments Nos. 161 to 166 inclusive. I see the common thread through all of them but I shall respond to them separately.

Amendment No. 161 deals with the regulation-making power at subsection (7)(d) to modify the application of Step 1 of the statutory grievance procedures. This would give us the ability to deal with those cases where the sending or the reading of a Step 1 communication presents serious difficulties because the employee or the employer has a disability or an incapacity which prevents him from reading or writing the letter in English. These modifications would normally be to the benefit of the employee but there could be cases where the procedure should be modified to overcome a particular difficulty which the employer may have. It might marginally inconvenience the employee, although it would be desirable overall. So we do not think we should have a formulation as in Amendment No. 161, which requires the beneficiary always to be the employee.

It also raises issues about what constitutes treatment that is more or less favourable to the employee. Different views could reasonably be taken in many circumstances and the tests would be difficult to apply in practice. We might be, under certain circumstances, inviting judicial review, which would not be very good.

Amendment No. 162 is similar. It seeks to prevent us from changing the admissibility criteria in any way that is less favourable to the employee. Again, it could have uncertain results and invite applications for judicial review. The policy underlying the amendment is too restrictive. It is biased against employer interests. If we are to create a fair and accepted system, it must meet the needs of both employers and employees.

Amendment No. 163 seeks to ensure that we use the power at subsection (8)(b) only to remove jurisdictions from Schedule 4. I do not see the point of this. Entirely new jurisdictions may be created in the future as the body of employment rights changes and evolves. We do not wish to limit our ability to use the clause to encourage the settlement of disputes under such jurisdictions.

Amendment No. 164 would require us by statute to consult ACAS on any regulations. I have already said in relation to earlier amendments that we would be consulting ACAS, among other interested parties, when we introduce the regulations for the first time because the regulations are very important. Once they are in place, however, there may be changed circumstances, which would mean that we would need to revise them. Some of the changes would be major and significant, in which case we would consult ACAS but some could be minor and we would not want to commit ourselves in advance to consulting ACAS.

Amendments Nos. 165 and 166 deal with subsection (10), which gives us powers to change other parts of the section when we use the power to change the admissibility criteria by order. It gives us the leeway to make incidental, supplementary, consequential or transitional changes to the section which flow from changing the criteria.

These provisions are very normal in the way in which regulation-making powers are specified on the face of legislation.

Lord McCarthy

I am not going to ask tonight the question that I have asked before but I would like the Minister to think about answering it tomorrow. We do not ask these questions because we are being difficult. We have asked the question before and I think that my noble friend asked it again this afternoon. We do not want an answer this evening. We do not see how any procedure could be smaller and more unambitious than this modified procedure for the statement of a grievance, which does not even have an appeal. Perhaps the Minister could think about that for tomorrow's debate.

7.30 p.m.

Lord Wedderburn of Charlton

One can understand the Minister saying that he does not quite understand what is meant. However, he says that about the phrase, "not less favourable to the employee". I could give him a bit of a reading list about where that phrase has been interpreted without much difficulty. The Minister, as I understood him, said the Government cannot really understand what is meant by a procedure "not less favourable to the employee".

Lord McIntosh of Haringey

I did not say that at all.

Lord Wedderburn of Charlton

He did not say that at all. I am glad about that and we can put that aside. So it is quite clear that we have moved something meaningful.

I can understand his comment about, for example, the obligation to consult ACAS, "Oh well, it is there already". All right. We thought it would be rather valuable at this particular point to make the requirement absolutely clear. What I do mind is when he says, "These could be cases where we want to change the statutory procedure"—I hope I have this right—"to the disadvantage of the employee. It would be biased if we did not take that power". However, he does not give us an example, not even a saloon bar example, which is where these matters are much discussed, especially among small employers and trade unionists too when they get going. If he cannot give us an example, why did he say it?

He gave us examples of things which might be, as I remember, to the disadvantage of the employer. If he gives us an example, we shall be able to judge whether it is conceivable that these unfair procedures could be replaced by something to the disadvantage of the employee that would be more unfair.

I appreciate that this is drawing a bow at a venture and he may have thought of one after all this time. We put it to him three or four days ago but the Government did not come up with an example then. What is the example he has? I see that he is pregnant with delivery and he is about to give us an example.

Lord McIntosh of Haringey

If I stand up and try to be helpful, I get accused of bobbing up and down. I earlier gave a specific example in my speech. It was the case in which there were communication difficulties, because the employee or the employer has a disability or an incapacity which prevents him from reading or writing the letter in English. These modifications would normally be to the benefit of the employee but there might be cases where the procedure should be modified to overcome a particular difficulty which the employer may have. It might marginally inconvenience the employee, although it would be desirable overall".

Lord Wedderburn of Charlton

I am delighted at my noble friend bobbing up and down, especially when he bobs up with replies like that.

Lord McIntosh of Haringey

I said it before, I said it before.

Lord Wedderburn of Charlton

He has said it twice now but he has not given us an example. It would only be to the disadvantage of the employee if he was forced to write in Greek or forced to write in Swahili. He says that communication may be difficult for those who do not have good English, or for those who are under some disability with their English. All right, so we can make modifications that would be to the advantage of such an employee.

We ended the last session with my noble and learned friend interpreting the amendments in exactly the opposite sense to that in which they could reasonably be read, and he apologised. I do not expect my noble friend to do so tonight, there is not time for a proper apology. However, my noble friend says that he can envisage cases—and he had better think about this for next time—where he will put the employee at a disadvantage. Now I did not hear him give us an example of one such case. He will want to make it concrete next time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 162 to 166 not moved.]

Lord McIntosh of Haringey

This may be a convenient moment for the Committee to adjourn until tomorrow at 3.30 p.m.

The Committee adjourned at twenty-six minutes before eight o'clock.