Trade Union Reform and Employment Rights Bill

HL Deb 30 March 1993 vol 544 cc804-83

House again in Committee on Clause 32.

Lord Morris moved Amendment No. 226: Page 49, leave out lines 28 to 32.

The noble Lord said: As a fully paid-up member of the fifth form remove common room it is an enormous relief to be away from the rigours of the senior common room of the economists. However, that does not mean that I move this amendment lightly. I have always believed it to be correct that one of the primary purposes of law reform is to effect or inject certainty into the law. I believe that Clause 32, which attempts to amend the constitution and jurisdiction of industrial tribunals, does not effect certainty. I am also concerned that the clause was against constitutional reality; namely, the division of power between the executive and legislature. For those reasons I ask my noble friends on the Front Bench to consider the amendment very carefully.

I do not suggest that it is outwith the competence of the Government for the clause to affect the constitution and jurisdiction of industrial tribunals, but in so doing they hand over power to the Secretary of State by order to amend the provisions of subsection (2C). That provision clearly defines the jurisdiction of tribunals and those cases that can be heard by a chairman sitting alone. That purport is absolutely sound and I entirely accept it.

However, I find it rather bizarre that the Secretary of State should be given power, without reference to Parliament on something so fundamental as the constitution and jurisdiction of tribunals, to legislate as he goes along, so to speak. This is one area of the law where the livelihood and interests of the individual are affected by a tribunal sitting in a quasi-judicial capacity. There should be a considerable degree of certainty. I cannot believe that it is outwith the competence of government to be more certain. I suspect that the clause has been drafted or considered in a hurry. All I ask my noble friends on the Front Bench is that they take back this matter and consider how to inject into the clause the parameters of the jurisdiction with more precision. It is totally wrong to effect by Order in Council something so fundamental to the constitution at the discretion of the Secretary of State. The words "amend the provision" mean that he can extend or restrict the parameters and powers of industrial tribunals.

I am certain that my noble friend on the Front Bench will raise some extremely cogent arguments about the fact that we live in times of extreme flux and that Her Majesty's Government need the flexibility which this procedure will afford them. I believe very strongly that what is proposed is an erosion of the power of Parliament and an increment of the power of the executive that needs to be considered with great care. It is for that reason that I tabled the amendment. I am grateful that someone with such knowledge, erudition and eloquence on these subjects as the noble Lord, Lord Rochester, has appended his name in support of the amendment.

Lord Rochester

I deny absolutely the reference to my erudition and the rest of it, but I have put my name to the amendment and I gladly support what the noble Lord, Lord Morris, said. It seems wholly wrong that the Secretary of State should be empowered merely by order and without primary legislation to add to the number and type of cases on which industrial tribunal chairmen may sit alone without lay members to hear proceedings of this kind.

The noble Baroness, Lady Denton, said earlier that the effects of implementing Clause 32 would be monitored by the Government. I do not believe that that is good enough. Subsection (2D) represents yet another instance of the executive seeking to limit the extent to which Parliament is able to control the way that legislation is implemented. Under this Government the number of such cases grows alarmingly with almost every major Bill that comes before Parliament. It is high time to set a limit on the process, and the Committee can do that by accepting the amendment. I hope very much that the Minister will give very careful consideration to what the noble Lord, Lord Morris, said.

Lord Wedderburn of Charlton

I support the noble Lords who have spoken to this amendment. The more one thinks about it the more serious the matter becomes. I pose two questions for the Minister. Has this any precedent in the juridical sphere of the competence of our courts? Will it or will it not need an order by way of affirmative procedure?

Lastly, and much more importantly, since we know that the Government take a long view on these matters, what is it all about? Members of the Committee have begun to see in this Bill the long term purpose of the past eight or nine years of legislation. I wholly approve of their wisdom in seeing it. We know what it is about. But with this provision we do not know what it is about. The Minister is not advised short term on these measures. What are the possible or likely candidates for territory into the area of which the one-man tribunals might be extended, quite apart from the monitoring which, as the noble Lord said, is another question altogether. We should be given some idea of why these two lines are in the Bill.

Baroness Gardner of Parkes

I believe that a three-person tribunal—I declare an interest here—is extremely valuable. In the 18 years that I have sat, on only one occasion did we not have a unanimous decision. On that occasion, I said to my colleague who did not agree, "Do you often have this problem?". He said, "I regularly have it", so I gather that he was a person who could not agree with anyone.

Without doubt a three-person tribunal gives the applicant and the respondent in each case a feeling of confidence that there is someone there who cares about their case. Although I am not opposed to the idea of a chairman sitting alone on certain occasions, we have to watch anything that might destroy the existing system, which works so well. We must also realise that in certain instances where the chairman will sit on his own—they are quoted in the Bill—instead of there being a saving of time, our chairman has pointed out that there might actually be a loss of time. If a chairman had three members there, he would be able to determine the preliminary point and then go on to a full hearing, if necessary. However, because he would be doing it on his own, he would have to bring people back on another day in order to have the three people there. So there are occasions when such a change would certainly not speed things up. That is my comment on the amendment. I shall be interested to hear the Minister's reply.

Lord Henderson of Brompton

I should like to join the congratulations to the noble Lord, Lord Morris, on putting down this amendment. When I read this clause—I can say honestly that it is one of the clauses that I have read from beginning to end—it occurred to me that this was an extraordinary power and as such was one on which I would have expected our recently appointed Delegated Powers Scrutiny Committee to have reported to the House. It is only a couple of weeks since we had the committee's first report. It is already in being and we have approved its terms of reference. I do not wish in the least to say anything against the committee because it has only just started its work, and I have every wish for its success. However, as it is already up and going, this is just the kind of point about which we would have expected to have a signal from it. We have not. That may be because the Bill was introduced before the committee's terms of reference and its first report were approved. Nevertheless, we have time between now and Report. I very much hope that between now and Report stage the committee will take this provision on board and give us its opinion.

Earl Russell

I do not think that any member of the Delegated Powers Scrutiny Committee is in the Chamber. I understand from discussing it with members of the committee that the first Bill on which they are able to exercise their powers in full is the Education Bill. This Bill was too early for them. I entirely agree with the noble Lord, Lord Henderson of Brompton, that this is exactly the kind of provision on which in future we will wish to hear from the committee. Perhaps I may now ask the Minister the basic question. Is this Henry VIII clause necessary, and why?

Baroness Denton of Wakefield

I understand the anxiety that Members of the Committee have expressed, but I sometimes wonder whether it is possible to please everyone. I had felt in the reply to the earlier amendment that the flexibility of saying that we did not believe that there might not be a need to look again at this question was something which Members of the Committee would appreciate. The power is new and experience may show either that other types of case could also successfully be heard by a chairman sitting alone or indeed perhaps that some types of case listed in subsection (2C) are totally unsuitable for this procedure.

Subsection (2D) allows the Secretary of State to make an order to amend the provisions of subsection (2C) should it become apparent that such adjustment would be useful. However, perhaps I may point out to those who have expressed anxiety about the power that subsection (2E) provides that such an order would be subject to the affirmative resolution procedure. Any changes could be introduced only after a debate in both Houses. I hope that will reassure Members of the Committee that that is the opportunity for Parliament to examine any suggestions and to comment on them.

I would again reiterate that the Bill largely maintains the current tripartite nature of the tribunal system. We believe, and my noble friend Lady Gardner of Parkes believes, that there could be occasions when what is proposed might be appropriate. Noble Lords would have the opportunity to debate any proposed changes before they are made and to reject any they consider unacceptable. I therefore cannot accept that there would be any advantage—

Lord Stoddart of Swindon

The noble Baroness has just given the impression that the House could amend an order or refuse part of the order. That is not so. Orders are not amendable. The House either agrees with them or does not.

Baroness Denton of Wakefield

I am sorry if I caused concern to the noble Lord, Lord Stoddart, by being casual. I should have said that the House could reject, not amend, any order that it considers unacceptable. I therefore feel that there would not be any advantage in deleting subsections (2D) and (2E) so that changes could be made only by primary legislation. It would delay the process unnecessarily once the need for change was identified, and possibly not to the benefit of people using tribunals, and would perhaps be an inappropriate use of Parliament's time. I would suggest that subsection (2E) provides adequate safeguards to allay any anxieties that Members of the Committee may have. I therefore hope that my noble friend will withdraw his amendment.

Lord McCarthy

Before the noble Baroness sits down, does she not agree that what she is being asked, which she has not answered, is what the Government have in mind? Under subsection (2C) we have employer insolvency, Wages Act claims, breach of contract claims, applicant withdrawal, and uncontested claims where the parties agree to sitting alone. All those matters are covered. This is something new. What can it be if the Secretary of State wants to take additional powers except going into the heart of unfair dismissal claims, sex, race, trade union dismissal claims, and so on. These are at the heart of what industrial tribunals do. What do the Government have in mind? Do they want to go into the heart of what industrial tribunals do?

Baroness Denton of Wakefield

I said that this gave the opportunity to add to the powers or subtract. We are saying that we shall learn from experience and we shall wait for experience and make our judgments.

Lord Morris

I did not realise that I would so swiftly be agreeing with such enthusiasm with the noble Lords, Lord Stoddart and Lord McCarthy; but they both hit, with the precision and ability which they so often demonstrate in this Chamber, the absolute central points. I gained no comfort from my noble friend—I am sorry to say that—about the affirmative procedure with regard to orders in council.

The only time I have managed to effect not a change in an order in council but to ensure that it was withdrawn was by the most complicated and the most difficult shenanigans outside Parliament and unbelievable wheeling and dealing. I knew full well that in Parliament to throw out an Order in Council is virtually impossible. It was withdrawn. It is an experience which I shall never forget. I have no comfort whatever in the affirmative procedure. The noble Lord, Lord McCarthy, was correct. It is quite clear from this clause that at the time of the drafting of the Bill the Government did not, with any precision, have any idea of the parameters of the jurisdiction which should be covered by a chairman sitting alone. That is fair enough.

Baroness Denton of Wakefield

Before my noble friend sits down, I draw attention to the fact that Members of the Committee may be aware that the clause was originally drafted to allow orders to be made using the negative resolution procedure. But when that was discussed in another place, it became clear that the opportunity to give any proposed changes greater scrutiny offered by the affirmative procedure would be welcomed. At that point subsection (2E) was inserted as a result. I hope that that increases my noble friend's background knowledge.

Lord Morris

The negative procedure is even worse than the affirmative procedure. It is as simple as that and it is not any comfort at all. I am suggesting that my noble friend considers this matter with care. There is plenty of time to take this matter away and to expand (2C) as much as they like. The Government can take out the power given to the Secretary of State which is quite wrong on an issue as important as this. We are talking about a court of law. If the government of the day cannot define within primary legislation the constitution and jurisdiction of what is in effect a court of law affecting the life and livelihood of individuals, there is something very seriously wrong. It is for that reason that I tabled the amendment.

There is a measure of considerable concern about this. Will my noble friend take this matter away and her department consider it with care? I have a very strong feeling that this provision has been dealt with in something of a hurry. At the same time I support the fundamental principle of industrial tribunals to give to those who feel that they have been wronged a cheap and effective way of "coming to law". I entirely accept that and that is right and proper.

This method has always been a sloppy way of drafting primary legislation. I am grateful to the noble Lord, Lord Henderson of Brompton, for his support as regards this matter. He is right in principle. The importance of this point is demonstrated by the mere fact that this Committee has been created. I beseech my noble friend between this stage and Report to take this matter away and reconsider it.

Lord Henderson of Brompton

Before the noble Lord sits down, the important question was put by the noble Earl, Lord Russell; namely, whether or not this matter should be in the Bill at all rather than whether or not it should have the affirmative or negative resolution procedure.

Lord Moms

The noble Lord, Lord Henderson, is right. The noble Earl, Lord Russell, made the critically important point that if subsection (2C) had been properly drafted, the necessity for (2D) and (2E) would go straight out of the window. It is as simple as that. I beseech my noble friend to take this matter back with her officials and consider it.

Baroness Denton of Wakefield

I am sorry that I have been unable to give comfort to my noble friend. We obviously read Hansard closely after a Committee stage. I stress that the intention is very much for the Government to learn from the operation and to leave flexibility which will be to the benefit of the industrial tribunals and their users.

Earl Russell

I do not know whether the noble Baroness has read the report to the Delegated Powers Scrutiny Committee. In future departments will have to get used to offering a full justification for the need for these Henry VIII clauses. The committee said very specifically that something more was going to be required than a general invocation of flexibility. I do not believe that anyone is arguing that these clauses are never going to be admitted.

We want to know precisely why the Government feel the need for them on any particular occasion. The noble Baroness also conflated two different parliamentary powers: one is scrutiny and the other is control. As regards scrutiny, I believe that we all agree that the affirmative procedure has value. The question is how far it has value and control. The noble Baroness said that this House had the power to reject an order. I heard that with interest and I welcome it.

On Question, amendment negatived.

Clause 32 agreed to.

Clause 33 [Constitution of employment appeal tribunal]:

Lord Wedderburn of Charlton moved Amendment No. 227: Page 50, line 27, after ("employers") insert ("or employers in a relevant sector or area of industry or society"). The noble Lord said: In moving this amendment I speak also to Amendment No. 228. This amendment concerns what I find to be the difficult question of bipartisanship in a tribunal. This amendment addresses a clause which relates mainly to the Employment Appeal Tribunal, but it seems foolish to follow through with an amendment which is really to raise a question of principle with the Committee to which it might be possible to return on Report. It is stated that we might consider another step towards specialisation in the membership of the tribunals. It is expressed in the form of the wing persons being not just employers, but possibly employers in a relevant sector of industry and workers similarly defined. That leaves a discretion as to how that is done which no doubt will be monitored in the Government's activities.

I do not move this amendment in the sense that it is an answer to legalism which is a very difficult problem. Although I have an interest in the matter, research shows that legalism is not the same as lawyers. Some of the most legalistic people I know are definitely not lawyers albeit that they may work by intuition in senior common rooms.

It is common knowledge that we have begun specialisation in our tribunals, but have not thought whether we want to go through with it or retract it. Perhaps I may make that plain in a practical sense. In sex equality and equal pay cases, and so forth, it is officially accepted that the practice is to seek at least one woman wing person. In racial discrimination cases, the official practice is not the logical equivalent, which is one person from the ethnic minorities, but to make sure that one wing person is experienced in race relations.

As far as the chairmen are concerned—and this provision affects chairmen as well—after his period as president of the employment appeal tribunal, Mr. Justice Waite wrote that an experienced person should be selected for specialist training so as to make a selected core of chairmen and members on race and sex discrimination cases. He has argued that in a number of places. I know that that view is widely held by those with experience of tribunals. Some say, "No, the industrial tribunal and to some extent the employment appeal tribunal is a kind of industrial jury—more so for the lower tribunals—and they would resist specialisation." One understands why they do, although the evidence, especially that from the Warwick University studies, suggests that specialisation can operate so as to take the edge off legalism.

Perhaps I may look abroad briefly. Although one cannot look there for an answer, it is perhaps worth examining what other people do to suspend the disbelief that ours is the only way of doing things. In France, the well-established tribunals, the Conseils de Proud'hommes, like our industrial tribunals, contain two employers and two workers. For the most part, they do not have legal chairmen and the members are elected. More importantly, they are divided into five industrial and sectoral groups so that the lay judges can understand the industry with which they are dealing. That seems one of their stronger points although the conseils are much criticised on other matters. The Swedish labour courts suggest a kind of "fortified" tripartism. The courts comprise two employers, two employees and two judges, the seventh member being an expert specialising in labour market conditions. There are many other examples, but from those that I have given it can be seen that there are many ways of modifying and improving tripartism.

In Britain we seem to have gone down a curious cul-de-sac in that we can have either a single chairman or three people. That has been the form since 1964 when the tribunals were created, not to serve most of the purposes that they now serve, but by the Ministry of Labour to deal with selective employment tax cases. I know that the Minister is unlikely to accept these probing amendments which ask whether, in his review of the operation of the tribunals and the EAT, he will make it possible for certain areas of jurisdiction to be made less legalistic, with luck, by the advance of a certain degree of carefully constructed specialisation. I beg to move.

9 p.m.

Lord McCarthy

I support my noble friend Lord Wedderburn in his amendment. As he says, it is well known that an element of specialisation has been introduced into this matter, especially in relation to sex and race discrimination cases. It is also well known that the effectiveness and the influence of the side members at all levels—even at the somewhat rarefied level of the EAT—is dependent to some extent upon their practical experience, if not on the fact that they can say to a legal chairman, "This is my industry. It is my area and I know this from practical experience."

As we know, the financial sector is very different from manufacturing industry and, of course, the construction industry is a law unto itself. If anybody who knows what goes on in the construction industry or who has worked in the industry gets on to a tribunal, he is able to silence the most overbearing chairman because he can say, "You do not know anything about a building site but I have actually worked on one." People's experience is the main justification and reason for their serving on the tribunals. Therefore, it would be helpful if the Minister could tell us whether the Government are thinking in terms of more specialisation.

Baroness Denton of Wakefield

First, perhaps I should say how delighted I was to hear the noble Lord, Lord Wedderburn of Charlton, saying that he was looking for something slightly less legalistic. I am sure that he was not suggesting that the employment appeal tribunal members fail to fulfil their role adequately because of lack of specialisation. Perhaps I can help him by giving the Government's thinking. The position of the industrial tribunals is not easily comparable with that of the employment appeal tribunal. Appeals in this area are made only on a point of law. There is no question of lay members needing to supply detailed knowledge of the conditions in a particular industry because the industrial tribunal will already have decided on the facts or the case will be sent back for it to do so. Employment appeal tribunal members are chosen for their broad knowledge of the industry. They may well be prominent in their field and there could even be a danger of accusations of bias if they served on cases in which they might be thought to have a professional interest. However unfounded such accusations might be, they could certainly complicate the issues.

It would be difficult to implement provisions governing how the specialised categories could be divided and how the specialisation would be split between the relevant industries. It would mean maintaining a large number of panels. The opportunity for members of the panels to gain experience in a variety of different types of complaint would create some difficulties. Of course, I recognise that there are times when knowledge of a particular sector could be a valuable help, but those occasions must be far outweighed by the number of cases in which general industrial experience is the most useful factor. I hope that that has given the noble Lord, Lord Wedderburn, some guidance on the Government's thinking and that, as he said, he will not press the amendment.

Lord Wedderburn of Charlton

I thank the noble Baroness for what she said. She will know, I am sure, that since the days of the noble Earl, Lord Gowrie, and so on, we have become less and less confident of being satisfied by answers from the Government Bench. I am aware that the Employment Appeal Tribunal is different from industrial tribunals. I thought that it would tire the Committee if I drafted amendments relating to them all.

So far as concerns bias, I am sure that the Government know, or, at any rate, have it within their ability to know, because they refer in the Green Paper to numerous foreign systems, that the allegation of bias, or the possibility of bias, is the one factor that does not seem to have arisen in most of the other systems that tried out a little more specialisation.

The noble Baroness has dug a hole in the practice of appointing specialised wing persons to discrimination cases. On what she said, everyone would have sufficient industrial or other social experience to serve as a wing person in those cases, so what on earth are the tribunals doing? Of course I do not take that view. I say that before she puts it to me. I believe it is a good adventure into experience. We need more knowledge of it, and we could do with a little more knowledge of specialisation; but I see we shall not get it under this Government, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 228 and 229 not moved.]

Clause 33 agreed to.

Clause 34 [Extension of power to confer on industrial tribunals jurisdiction in respect of contracts of employment etc.]:

Lord Henderson of Brompton moved Amendment No. 230: Page 50, line 47, leave out ("may") and insert ("shall").

The noble Lord said: I hope that the Government will agree to accept the amendment, but perhaps in their own form rather than this. It is totally devoid of any party political consideration. I believe that the Government have already gone half way towards agreeing to this amendment in another place. The amendment seeks to correct a state of affairs which exists now, whereby the Secretary of State may make an order to transfer jurisdiction for adjudicating pay-in-lieu-of-notice claims from the county court to an industrial tribunal. The amendment is designed to make it compulsory for industrial tribunals to adjudicate such claims, and not to leave it to any discretion for them to go to the county court.

I know that there is a certain amount of feeling as between the county court and the industrial tribunals; but I should have thought that pay-in-lieu-of-notice claims are admirably suited to the industrial tribunal. I should have thought also that would have been very much in line with the general philosophy of the noble and learned Lord the Lord Chancellor of providing for more jurisdictional claims to be made settleable in lower courts rather than the higher courts. As the matter is being pushed down to the second tier of the higher court, it seems reasonable also to relieve the second tier of the higher court by pushing the matter further down to the tribunals. In this case, especially in view of the discussions that have taken place up until now, I should have thought that industrial tribunals were eminently suitable for adjudication in such cases.

Section 131 of the Employment Protection (Consolidation) Act 1978 allows the Secretary of State to make an order for transfer of jurisdiction for such breach of contract actions from the county court to an industrial tribunal. Although that power has been given to the Secretary of State, I believe that it has not been exercised. I wonder why. I wonder why we cannot take the opportunity to transfer that jurisdiction to the lower tribunal.

In a letter to the NACAB dated 10th February this year, Mr. Michael Forsyth, the Minister of State for Employment, said: I can assure you, however, that it is the Government's firm intention to bring forward an order to extend the industrial tribunal's jurisdiction to complaints about breaches of employment contract. The details are yet to be decided, and are indeed a matter for the Lord Chancellor". I hope that by now the noble and learned Lord the Lord Chancellor will have decided that that transfer should take place. Interestingly enough, that was not merely the view of Mr. Michael Forsyth, it was the view of the Law Lords. The noble and learned Lord, Lord Browne-Wilkinson, as reported in a law report, said in the case of Delaney v. Staples: This … produces an untidy and unsatisfactory result. On any dismissal, the summary procedure of the Industrial Tribunal under the Act will be exercisable in relation to unpaid wages (in the ordinary sense), holiday pay, commission, maternity leave, but claims relating to the failure to give proper notice will continue to have to be brought in the county court. The employee is therefore forced either to bring two sets of proceedings or to proceed wholly in the county court on a claim for damages". That, says the noble and learned Lord, is a waste of time. He continues: the courts have been suggesting that this power be exercised for nearly 20 years, so far without success. I believe that all your Lordships are of the view that the present unsatisfactory position calls for fresh consideration by the Minister".

I hope that Members of the Committee in this Chamber and noble and learned Lords in the Judicial Committee upstairs will agree to the proposal and save a great deal of time and trouble. I beg to move.

9.15 p.m.

Lord Wise

I support the amendment moved by the noble Lord, Lord Henderson. It seems entirely unnecessary for an employer who believes that he has been unfairly dismissed without notice or payment in lieu to have to bring two sets of proceedings or proceed directly to the county court. The amendment will eliminate that and it appears to be a much fairer procedure. I support the amendment.

Earl Russell

I wish to add one single point in favour of the amendment. It is common knowledge that the Government are anxious to reduce the legal aid bill. Avoiding the necessity to have two different sets of proceedings about the same matter in two different places might be one of the more innocuous ways of achieving that aim.

Baroness Denton of Wakefield

I sympathise with the noble Lord, Lord Henderson, and my noble friend Lord Wise in their desire to see an order made under Section 131 of the 1978 Act. The Government are equally keen that such an order should be made, and that is why we have brought forward the measures in Clause 34, which will enable us to do so. Members of the Committee will not be surprised to learn that I cannot accept the amendment as it stands.

Before deciding to make an order under Section 131, we undertook extensive consultation. It was only following that, when the legal advisers of the relevant departments came to draft an order, that defects in the order-making power were discovered. Primary legislation was required to remedy the defects, and the Bill represents a first suitable opportunity to bring forward the necessary provisions.

Naturally, I cannot give a precise date as to when an order will be made. However, the Government are committed to doing so at the earliest possible opportunity. It is our firm intention to bring forward an appropriate order shortly after the Bill gains Royal Assent and Clause 34 comes into force. I hope that that will reassure the noble Lord and that he will feel able to withdraw his amendment.

Lord Henderson of Brompton

I am delighted to receive the noble Baroness's assurance. I am always suspicious about the use of the word "shortly", but I shall have to live with that. Having received her categorical assurance that the matter will be dealt with by order "shortly", I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 231: Page 51, line 5, at beginning insert ("Without prejudice to a claim brought under section 22A of the Trade Union and Labour Relations (Consolidation) Act 1992,").

The noble Lord said: I move the amendment in order to obtain a government answer to a problem which is bothering many people. I appreciate the limit which the Government intend to impose in regard to jurisdiction relating to personal injuries, and it is one which is normally included in such proposals. However, a problem arises if a breach of the employment contract—let us say, an unlawful order —results in a worker breaking his or her leg. Is there any choice as to the forum? During the years we have had problems with whistle blowers, but this is the problem of the leg breaker. That may happen in consequence of the worker being told to go to an unsafe place of work or some other problem may arise. Exactly what is the extent of the phrase: a claim for damages … in respect of personal injuries"? Does that cut out everything and leave it to the breach of contract proceedings elsewhere? Where is the limit of the jurisdiction? I beg to move.

Baroness Denton of Wakefield

I assume that the noble Lord, Lord Wedderburn, is referring to Section 22(1) (a) of the 1992 Act rather than Section 22A. In that case, I am happy to assure the noble Lord that his amendment is quite unnecessary. The industrial tribunals have no jurisdiction to hear any personal injury claims, whether against trade unions or against anyone else. Such claims must instead be pursued through the civil courts. The Government have no intention of departing from this position, as such cases are clearly quite outside the industrial tribunals' normal area of expertise and experience.

The purpose of new Section 131(3) is to preclude even the theoretical possibility of an order being made under Section 131 to give the tribunals jurisdiction to hear such cases. The civil courts will continue to determine personal injury cases. I hope that, in the light of the assurance I have given, the noble Lord will feel able to withdraw his amendment.

Lord Wedderburn of Charlton

If that is right, if a wrong which is actionable under the new Section 22A or Section 22C in Schedule 5 had a loss attached to it which was partly personal injury and partly not—which may well be the case especially if we enter the field injury to feelings and so on—then two actions will have to be brought instead of one. It may be that that is inevitable but the Government should spell that out more clearly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henderson of Brompton moved Amendment No. 232: Page 51, leave out lines 7 to 14.

The noble Lord said: This amendment is concerned with the introduction into the Bill of a maximum level for claims made for pay in lieu of notice. Hitherto there has been no maximum level. I wonder why that has been done and whether it is necessary or fair to introduce a maximum level.

I cannot understand how this has crept in. Apart from the fact that it seems to me eminently fair that claims of this kind should be met, if justified, by the actual value instead of a maximum value, experience of maximum values, which have obtained until now on unfair dismissal or sex discrimination claims, show that that value has eroded over the years. Despite the fact that there is supposed to be an annual review of limits to take into account the general level of earnings and the national economic situation the figures have nevertheless been eroded.

I am told that in sex discrimination cases in 1980 the limit was £120. In that year the average weekly wage for men and women over the age of 18 was £108.70. In other words, the limit represented 110 per cent. of the average wage. However, by 1991, 11 years later, the financial limit was £198 at a time when the comparable rate of average earnings was £287.70, which represented only 70 per cent. of the average wage. If that kind of erosion is to take place across the board, not only for unfair dismissal and sex discrimination cases, but also for pay in lieu of notice, that is discriminating badly against claimants. I should have thought that there was no justification for introducing it into the Bill.

I have further arguments but I should first like to hear what the Minister has to say to justify the introduction of this provision into the Bill. I hope that the Minister may reconsider this matter and perhaps delete it on Report. I beg to move.

Lord Wise

I wish briefly to support the noble Lord, Lord Henderson, on this amendment. It seems to me perfectly possible to determine the amount of loss sustained by an employee who has been unfairly dismissed without notice or without payment in lieu. Employees' or workers' earnings are all reflected in the amount that they can spend weekly. Their outgoings are determined by the amount they earn. If a sudden loss of earnings is experienced, problems must inevitably arise. It seems to me that it is only fair that they should receive a full payment and not just a maxim um payment, whatever that may be. Therefore I entirely support the noble Lord, Lord Henderson, on this amendment.

Earl Russell

One of the difficulties with putting maximum limits on things is that they need uprating. The number of things that need uprating in the course of a year is considerably greater than the number that actually receive uprating. I only need invoke the old dog licence. I appreciate that in any statute which is allowing for uprating there has to be a procedure for revision. But I think that the drafting of the clause, as the Government have it here, is a good deal too vague to be capable of giving satisfaction to the Committee. The Bill states that an order may not exceed, such sum as may be specified in the order". That is definitely a pig in a poke. It is not even a particularly figure hugging poke. One has no idea what is inside this. It would be perfectly possible, as far as I can see, to make an order under this clause that the sum shall not exceed £1. I do not for a moment suggest the Government intend to do that, but this Government is not the only government that will ever exist in the history of the world. I hope that if the clause stays in, it may end up a little more tightly drafted than it is now.

Baroness Denton of Wakefield

As the noble Lord, Lord Henderson, and my noble friend Lord Wise have explained, this amendment would delete the words at Clause 34(c), which make clear that the order-making power in Section 131 of the 1978 Act allows for the placing of an upper limit on the awards which a tribunal can make under this new jurisdiction. I cannot accept the change they have proposed. There are already upper limits on the awards which tribunals can make in most other cases falling within their jurisdiction, and it is entirely reasonable that the order-making power in Section 131 should allow for the setting of such a limit in contractual cases.

It has always been the Government's intention that an upper limit should apply, at least initially until we have had an opportunity to see how the new jurisdiction works out in practice. The words at Clause 34(c) are intended to put beyond doubt that the order-making power allows for this, whereas under the existing Section 131 this is unclear.

In answer to the point made by the noble Earl, Lord Russell, I should say that the precise details of the order to be made under Section 131, as amended by Clause 34, are still under consideration. The order will be subject to the affirmative resolution procedure, so Members of the Committee will have ample opportunity to debate its contents, if they wish do to so. I am sure that the noble Earl would not expect me to pre-empt decisions by the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Advocate—the Ministers who will be responsible for making orders under the amended power. However, an appropriate precedent may be the limit which applies to compensation in ordinary unfair dismissal cases. Applicants who wish to claim damages above the limit set will still be able to pursue their case through the civil courts, as at present. I hope that the noble Lord will consider withdrawing the amendment.

Lord Henderson of Brompton

Can the noble Baroness tell me whether, if claimants wish to pursue in the civil courts their claims against a maximum which has been set, they will be eligible for legal aid?

9.30 p.m.

Baroness Denton of Wakefield

As the noble Lord, Lord Henderson of Brompton, must know, that will be a question of whether or not they are entitled to legal aid.

Lord Henderson of Brompton

I was not at all sure whether they would be entitled to legal aid before the industrial tribunal. My question was whether they would be entitled to legal aid, if eligible, before the civil courts?

Baroness Denton of Wakefield

Going into the civil courts takes them into the legal aid area.

Lord Henderson of Brompton

I cannot profess to be entirely satisfied with the answer of the noble Baroness. The noble Lord, Lord Wise, and I wished to know why this measure has been introduced at all, to the detriment of the claimant. The only answer which the noble Baroness gave was that industrial tribunals have maximum limits in respect of other claims. That does not seem to me to be an answer at all.

As the noble Lord, Lord Wise, said, a man or woman is at a great disadvantage when he or she is suddenly out of a job and has no pay in lieu. It is a matter of great significance whether he or she receives an arbitrary maximum or his or her appointed due through the industrial tribunal. It is a matter of some significance when seen from the point of view of the person who has been dismissed and is suddenly out of employment.

I wonder whether it would not be possible for the noble Baroness to consider the matter on that ground rather than from the point of view of tidiness and equating it with other forms of jurisdiction before the industrial tribunal.

Baroness Denton of Wakefield

We have not considered the matter simply from the point of view of tidiness. The industrial tribunal offers people a means of taking their cases forward. As I said, the answer to the above-the-limit situation must be to go to the civil courts.

Lord Rochester

Is it not the case that industrial tribunal cases do not lend themselves to legal aid, so that legal aid is not available to claimants in industrial tribunal cases?

Baroness Denton of Wakefield

Legal aid is not available in industrial tribunals. It is available if the claimant goes through the civil courts.

Lord Wedderburn of Charlton

Will the noble Baroness consider this point for the future? If the Government are considering this matter, which has been opened up considerably in this debate, will they also consider a phrase which has been causing great perplexity in some circles, namely what is meant by: a number of claims relating to the same contract"? I do not ask the noble Baroness to explain that now but perhaps the Government will consider that phrase for when we return to the matter at Report stage.

Lord Henderson of Brompton

I am grateful to those Members of the Committee who have taken part in this brief debate. We have demonstrated that there are matters to he considered, and not only in relation to what the noble Lord, Lord Wedderburn, has just said. The noble Baroness and her colleagues might weigh in the balance tidiness and convenience as against humanity. They might consider the plight of a man who is out of a job and, as the noble Lord, Lord Wise, said, needs consideration. He should receive his just due and not merely an arbitrary maximum.

I have a feeling that the noble Baroness will consider the matter between now and Report stage. I am very grateful to her for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No 233 not moved.]

Clause 34 agreed to.

Viscount Ullswater moved Amendment No. 233A: After Clause 34, insert the following new clause:

Restriction of publicity in cases involving sexual misconduct: industrial tribunals

(".—(1) Schedule 9 to the 1978 Act (regulations for industrial tribunals) shall be amended by the insertion in paragraph 1 of the following.

(2) After sub-paragraph (4) there shall be inserted— (4A) The regulations may include provision—

1. (a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by the allegation;
2. (b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.

In this sub-paragraph—

• "identifying matter", in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by the allegation;
• "restricted reporting order" means an order prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain;
• "sexual misconduct" means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex of the person at whom the conduct is directed;
• "sexual offence" means any offence to which section 141A(2) of the Criminal Procedure (Scotland) Act 1975, section 4 of the Sexual Offences (Amendment) Act 1976 or the Sexual Offences (Amendment) Act 1992 applies (offences under the Sexual Offences Act 1956, the Sexual offences (Scotland) Act 1976 and certain other enactments);

and "written publication" and "relevant programme" have the same meaning as in that Act of 1992.

(3) In sub-paragraph (6), after the word "send" there shall be inserted the words "(subject to any regulations under sub-paragraph (4A) (a))".

(4) After sub-paragraph (7) there shall be inserted—

1. "(8) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
   1. (a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
   2. (b) in the case of publication in any other form, the person publishing the matter; and
   3. (c) in the case of matter included in a relevant programme—
   1. (i) any body corporate engaged in providing the service in which the programme is included; and
   2. (ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
   Expressions used in this sub-paragraph and in sub-paragraph (4A) above have the same meaning in this sub-paragraph as in that sub-paragraph.
2. (9) Where a person is charged with an offence under sub-paragraph (8) it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.
3. (10) Where an offence under sub-paragraph (8) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
   1. (a) a director, manager, secretary or other similar officer of the body corporate, or
   2. (b) a person purporting to act in any such capacity,
   he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.
4. (11) In relation to a body corporate whose affairs are managed by its members "director", in sub-paragraph (10), means a member of the body corporate."").

The noble Viscount said: It may be for the convenience of the Committee if, in moving the amendment, I speak also to Amendment No. 233B.

It gives me great pleasure to bring forward these two new clauses, which I am sure Members on both sides of the Committee will welcome. The new clauses will give industrial tribunals discretionary powers to protect from identification in reports of the proceedings the parties or witnesses in cases involving allegations of sexual harassment. I am sure that noble Lords will be aware of the offensive and sensational coverage some recent cases have attracted.

Harassment at work can make people's lives a misery and some are unwilling to bring their case before a tribunal because they fear that evidence given at the hearing will attract sensational or intrusive media coverage which might identify them. The evidence given at such hearings may include allegations about either party's private life and character as well as detailed descriptions of the alleged harassment. Bringing such a complaint can be a very distressing experience, and it is in the public interest that reporting restrictions should be available in such cases.

The Sexual Offences (Amendment) Act 1992 already makes it an offence to publish reports which identify the alleged victims of indecent assault or other more serious sexual offences unless they give their consent to being identified. The clauses will allow industrial tribunals to bring their own procedures in line with the requirements of that Act by removing from documents available to the public any information which might identify the alleged victim of such an offence or other parties or witnesses.

In addition, when the regulations are made, the clauses will give tribunals a discretion to make a restricted reporting order in cases where that is judged appropriate. That will prevent press reports from including information which leads to the parties or witnesses being identified. Such an order may be made in cases which involve allegations of sexual offences, sexual harassment or other adverse conduct linked to sex or sexuality. Reporting restrictions will therefore be possible in any appropriate case where evidence is likely to be given which includes intimate personal details relating to the sex or sexuality of one or more of the parties or witnesses.

A restricted reporting order will not be made automatically. An application for one may be made by any of the parties to the proceedings or the tribunal may make one on its own initiative. The industrial tribunal will have discretion in deciding whether to make an order. We do not expect large numbers of cases to arise where the circumstances will lead a tribunal to make the order but it is important that the power should be available to protect individuals where that is appropriate. The order may be made at any point during a case and will expire automatically once the tribunal's decision has been promulgated. Transgression of an order is to be a criminal offence punishable by a fine.

The second new clause gives the Employment Appeal Tribunal powers similar to those in respect of appeals against an industrial tribunal's decision or refusal to make an order of the type described above or against any interlocutory decision of a tribunal in a case where such an order had been made.

Calls for discretionary power to protect those involved in sexual harassment cases have come from tribunals themselves. A number of interested organisations have since been consulted for their views on whether the fear of publicity deters individuals from bringing cases involving allegations of sexual harassment or whether there should be support for giving industrial tribunals discretionary powers to protect the witnesses or parties in those cases. The responses suggested that hostile and intrusive publicity is indeed a serious problem in some cases and that as a result some potential applicants are deterred from bringing complaints. Seventy per cent. of those who replied were in favour of the type of discretionary powers laid out in the new clauses being introduced and only 4 per cent.—that is, only one respondent —against.

In conclusion, I hope that all noble Lords will agree with me that the new clauses offer valuable protection to the victims of and witnesses to sexual harassment and indeed to anyone who is falsely accused of such harassment. The Government strongly condemn sexual harassment and hope that these new powers will make the process of bringing an industrial tribunal complaint involving such allegations less distressing, thereby encouraging those who would previously have been deterred from bringing such cases to do so. I beg to move.

Baroness Turner of Camden moved, as an amendment to Amendment No. 233A, manuscript Amendment No. 233AA: Line 10, after ("any person affected by") insert ("or making")

The noble Baroness said: I commend the Government on bringing forward this amendment. Of course, it is absolutely right that privacy should he protected in sex cases. We all know that the newspapers, particularly the tabloids, can be appallingly intrusive in such matters. Unfortunately, salacious gossip is often more likely to attract a headline than serious news.

The reason for my amendment, however, is that it appeared to me that the new clause in Amendment No. 233A, as currently worded, would give protection for the identification of any person affected by the allegation, but would not specifically protect the person making the allegation. Very often, it is the person making the allegation who most needs the protection of such a clause.

I well remember some of the sexual harassment cases in which I was involved as a union official. We won the very first case that we brought before an industrial tribunal on behalf of a member. Nevertheless, it resulted in such intrusive and unpleasant publicity that the young woman concerned was so distressed that she said that had she known what would happen, she would not have brought the case in the first place.

Clearly, from the way in which the noble Viscount moved it, the amendment is intended to deter people from feeling that way and to give them the assurance that they will not be identified in such a manner. My amendment would make it quite clear that not only is the identification protected of any person affected by the allegation, but also the person making the allegation. I believe that that is a sensible proposition in the circumstances and hope that the Government will be prepared to accept it. I beg to move.

Lord Mottistone

I believe that the noble Baroness's amendment is splendid, but why did she not put a similar one down to Amendment No. 233B?

Lord Blease

I feel that these are useful new clauses and I wish to support the manuscript amendment put forward by my noble friend Lady Turner. In Northern Ireland this has been an item of considerable discussion among interested groups, particularly the Northern Ireland Equal Opportunities Commission.

I understand that there is no evidence that fear of publicity is deterring applicants from bringing claims of sexual harassment to industrial tribunals. Indeed, it could be argued that the publication of the offence and its consequences could be a deterrent to its practice. Together with many people and public organisations in Northern Ireland, I firmly support the principle in the European Convention on Human Rights that justice should be seen to be done in open court and that an accused should be able to identify his or her accuser. I fully appreciate the stress and embarrassment that may be caused by such hearings, but that is also a feature of other hearings, such as those involving religious discrimination.

The proposals regarding private hearings and the screening of witnesses have a heavy political overtone in the context of Northern Ireland and are already a matter of public disquiet. Along with the Northern Ireland Equal Opportunities Commission I consider it important to be mindful that the industrial tribunal is a civil law court, and that an action for sexual harassment before the industrial court is a civil law action. Proceedings before the industrial tribunals should therefore be quite distinct from those before the criminal courts. There are fundamental differences between the two—not least that a complainant is required to prove a case on the balance of probabilities in civil proceedings, while the complainant in criminal proceedings is required to prove a case beyond reasonable doubt.

The introduction of screening the parties giving evidence may unconsciously lead to the criminalisation of sexual harassment proceedings in the industrial tribunal, which would clearly be inappropriate in view of the role of the tribunals generally. Furthermore, given that industrial tribunals are required to seek to avoid formality in the proceedings, the suggestion that parties and/or witnesses should be permitted to give evidence from behind a screen does not appear to be appropriate. I understand that the screening question formed part of a consultation document that went out to Northern Ireland.

In short, the Equal Opportunities Commission for Northern Ireland, the Northern Ireland trade unions, the labour relations agencies and other public bodies, while endorsing the principle of openness in the administration of justice, would all welcome an explicit statement that industrial tribunals have the discretion to order private hearings. That is the case, I believe, in the amendment put forward by the Minister.

An explicit power in the order for the non-disclosure of the identity of the complainant and the respondent should be firmly identified with any proposals put forward for change. Those measures could be of value in ensuring that sexual harassment cases are properly dealt with. There is anxiety, however, that changes should not be introduced which might undermine the general informality of the industrial tribunal proceedings, perhaps making the procedure more daunting for the complainants. In general, with the proviso of the comments put forward, I feel that would be helpful, certainly in the Northern Ireland context. There is a general welcome for the provision that has been put forward.

Lord Renton

It would seem to follow from what the noble Lord said, that even though the offence is committed in Great Britain, publication should be restricted in the United Kingdom, which includes Northern Ireland. But both in the definition subsection of the new clause, Amendment No. 233A, and when we come to the same definition subsection in Amendment No. 233B, we find that there is restriction of publication in Great Britain. I would have thought that whether the offence is committed in Great Britain or in Northern Ireland, it should be made abundantly plain that publication in Northern Ireland is equally offensive.

Lord Rochester

I support the manuscript amendment of the noble Baroness, Lady Turner, and following what the noble Lord, Lord Mottistone, said. I hope, first, that the noble Viscount, Lord Ullswater, will accept the amendment; and, secondly, that he will either bring forward or accept an amendment in similar terms in the case of Amendment No. 233B at Report stage.

Viscount Ullswater

Before I turn to the amendment itself, perhaps I may deal with the comments made by the noble Lord, Lord Blease. I note what the noble Lord said of the position in Northern Ireland and the concerns that the Equal Opportunities Commission has aired. We need to strike a balance between the proper protection of the individual and the need for open justice. I believe that the Bill has got that right.

The new clause does not apply in Northern Ireland. An order will be required to extend it to Northern Ireland. Perhaps that is the answer to the point raised by my noble friend Lord Renton.

The Government do not propose that hearings should be in private or that parties or witnesses should be screened, as the Northern Ireland Equal Opportunities Commission feared. Views were sought on these proposals and the Government decided not to take them forward. Similar provisions are used in other legislation designed to enforce reporting restrictions: the Sexual Offences (Amendment) Act 1992 and the Children and Young Persons Act 1933, as amended. I understand that they have worked very satisfactorily.

I turn to the manuscript amendment. It was our intention that the protection from identification should extend to the individual making the complaint as well as potentially to the alleged harasser and witnesses. The amendment helpfully puts that beyond doubt. I am grateful to the noble Baroness for drawing that to our attention and I am happy to accept her amendment. The Government will bring forward on Report minor consequential amendments to ensure that the position is clear throughout both new clauses.

On Question, manuscript Amendment No. 233AA, as an amendment to Amendment No. 233A, agreed to.

Amendment No. 233A, as amended, agreed to.

Viscount Ullswater moved Amendment No. 233B: After Clause 34, insert the following new clause:

Restriction of publicity in cases involving sexual misconduct: Employment Appeal Tribunal

(".—(1) Schedule 11 to the 1978 Act (Employment Appeal Tribunal) shall be amended by the insertion after paragraph 18 (rules) of the following—

1. "18A.—(1) Without prejudice to the generality of paragraph 17 the rules may, as respects proceedings to which this paragraph applies, include provision—
1. (a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by the allegation; and
2. (b) for cases involving allegations of sexual misconduct, enabling the Appeal Tribunal, on the application of any party to the proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the Appeal Tribunal.
2. (2) This paragraph applies to—
1. (a) proceedings on an appeal against a decision of an industrial tribunal to make, or not to make, a restricted reporting order; and
2. (b) proceedings on an appeal against any interlocutory decision of an industrial tribunal in proceedings in which the industrial tribunal has made a restricted reporting order which it has not revoked.
3. (3) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
1. (a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
2. (b) in the case of publication in any other form, the person publishing the matter; and
3. (c) in the case of matter included in a relevant programme—
1. (i) any body corporate engaged in providing the service in which the programme is included; and
2. (ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
4. (4) Where a person is charged with an offence under sub-paragraph (3) it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.
826
5. (5) Where an offence under sub-paragraph (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
   1. (a) a director, manager, secretary or other similar officer of the body corporate, or
   2. (b) a person purporting to act in any such capacity,
   he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.
6. (6) In relation to a body corporate whose affairs are managed by its members "director", in sub-paragraph (5) means a member of the body corporate.
7. (7) In this paragraph—
   • "identifying matter", in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by the allegation;
   • "restricted reporting order" means an order prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain;
   • "sexual misconduct" means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex of the person at whom the conduct is directed;
   • "sexual offence" means any offence to which section 141A(2) of the Criminal Procedure (Scotland) Act 1975, section 4 of the Sexual Offences (Amendment) Act 1976 or the Sexual Offences (Amendment) Act 1992 applies (offences under the Sexual Offences Act 1956, the Sexual Offences (Scotland) Act 1976 and certain other enactments);
   and "written publication" and "relevant programme" have the same meaning as in that Act of 1992."").

The noble Viscount said: I have already spoken to this amendment. I beg to move.

Baroness Turner of Camden moved, as an amendment to Amendment No. 233B, manuscript Amendment No. 233BA: Line 10, after ("any person affected by") insert ("or making")

The noble Baroness said: I am happy to accept Amendment No. 233B in much the same terms as the previous amendment. The manuscript amendment is intended to be inserted in the same place—in paragraph 18A—as in the previous amendment. I beg to move.

On Question, manuscript Amendment No. 233BA, as an amendment to Amendment No. 233B, agreed to. Amendment No. 233B, as amended, agreed to.

Baroness Gardner of Parkes moved Amendment No. 234: After Clause 34, insert the following new clause—

("Restriction of vexatious proceedings

.—(1) If, on an application made by the Attorney General under this section, the Employment Appeal Tribunal is satisfied that any person has habitually and persistently and without any reasonable ground—

1. (a) instituted vexatious proceedings, whether in an Industrial Tribunal or before the Employment Appeal Tribunal, and whether against the same person or against different persons; or
2. (b) made vexatious applications in any such industrial proceedings whether instituted by him or another;

the Employment Appeal Tribunal may, after hearing that person or giving him an opportunity of being heard, make an Industrial Proceedings Order.

(2) In this section, "Industrial Proceedings Order" means an order that—

1. (a) no industrial proceedings shall without leave of the Employment Appeal Tribunal be instituted in any Industrial Tribunal or in the Employment Appeal Tribunal by the person against whom the order is made;
2. (b) any industrial proceedings instituted by him in any Industrial Tribunal or in the Employment Appeal Tribunal before the making of the order shall not be continued by him without the leave of the Employment Appeal Tribunal; and
3. (c) no application (other than for leave under this section) shall be made by him in any industrial proceedings instituted in any Industrial Tribunal or in the Employment Appeal Tribunal by any person without the leave of the Employment Appeal Tribunal.

(3) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

(4) Leave for the institution or continuance of or for the making of an application in any industrial proceedings by a person who is the subject of an order for the time being in force under subsection (I) shall not be given unless the Employment Appeal Tribunal is satisfied that the proceedings or application are not an abuse of the process of the Tribunal in question and that there are reasonable grounds for the proceedings or application.

(5) No appeals shall lie from a decision of the Employment Appeal Tribunal refusing leave for the institution or continuance of, or for the making of an application in, industrial proceedings by a person who is the subject of an order for the time being in force under subsection (1).

(6) A copy of any order made under subsection (1) shall be published in The London Gazette.").

The noble Baroness said: Amendment No. 234 seeks to deal with the issue of the vexatious litigant. Many people are not aware that the problem exists in industrial tribunals. However, a number of individuals persistently bring cases without any real justification and involve the tribunals in an enormous amount of time and expense.

I sat on a hearing where one of the most infamous of vexatious litigants brought a case. He was a highly qualified physicist. He was a European and brought the case on grounds of racial discrimination. He said that the discrimination was that he was not English. In the first case he had applied for a job but was not short-listed by the hospital. He applied for a more senior job and again was not short-listed. The hospital had to send to the hearing two expert witnesses who sat listening to the case for two whole days.

In the first instance the hospital said that the applicant was far too experienced to just run around handing out photographic plates. In the second instance they said that, although he was well qualified, he had never dealt with human beings. They wanted someone with experience of human X-rays rather than concrete slabs. After two days the case was thrown out. During that time I put to him, "I see from the record that you have brought about 30 cases against the health service in different parts of the country". He said, "No, I have brought over 70". I understand that as time went by that number went up to 100. I understand also that he was not alone and that there were a number of other similar cases.

When the system is abused in that way it brings the tribunals into disrepute. I therefore tabled the amendment. In the legal process there is a means whereby someone can be declared a vexatious litigant, but there are no means whereby that can be done in a n industrial tribunal process. I am open to an alteration in the wording or the process by which it can be done. It is the principle with which I am concerned.

I should like to explain, briefly, why the amendment is worded as it is. First, the application should go through the Attorney-General's office. I consulted with various noble and learned Lords in this Chamber and they made it clear that it would be more official in that way. That is where vexatious litigants are dealt with so a system is already in place that may be used.

Secondly, I believe that the application should be made to the Employment Appeal Tribunal and a decision reached there. The various types of order are listed in the clause. One of the most important points is that the application to bring proceedings thereafter should be made to the Employment Appeal Tribunal and not to the High Court. The reason for that is that in the past there was a situation when indeed the litigant to whom I referred went through a different process whereby he served a writ on the tribunal. In this case therefore it came to court, but the divisional court of the Queen's Bench Division wholly failed to appreciate the problems experienced by the industrial tribunal. The matter was therefore adjourned. Of course, when it was adjourned many more originating applications from the same person immediately appeared.

The Employment Appeal Tribunal would have to introduce special rules for the procedure, but I am sure that that could be managed. Also there should be no appeal to the Court of Appeal from the Employment Appeal Tribunal in connection with vexatious litigants.

I was a little surprised about the procedure in the legal system of publishing or gazetting the names of the litigants. However, I understand from consultations I have had that that is an important part of the procedure. It means that any application to any tribunal anywhere would immediately enable people to check that a person was not on what would be a small list of people classified as vexatious litigants.

I believe it is important, therefore, that the power should be given to the employment tribunals and to the Employment Appeal Tribunal. I beg to move.

10 p.m.

Baroness Turner of Camden

I understand the concern of the noble Baroness, Lady Gardner of Parkes, about vexatious litigants. What bothers me is that there can always be the odd individual whom everyone regards as a terrible nuisance but ultimately may have a good case. There are such cases on record. As I understand the situation, I believe it is now obligatory for a litigant to make a payment of £150 before the case is heard. I should have thought that that would be sufficient disincentive for someone mad enough to pursue a case with no basis at all. I feel a little unhappy about the amendment moved by the noble Baroness, although I understand that if such cases as she mentions come before the tribunal it can be extremely annoying. No doubt she and others feel that it is a terrible waste of public money and time. However, I believe that we have to be rather careful about an amendment of this kind.

Baroness Gardner of Parkes

I hope that the Committee will allow me to reply. The noble Baroness kindly mentioned to me the point about the payment of £150. This afternoon I phoned the office that registered all tribunal applications for the whole of England and Wales and discovered that at no time up to the present had anyone been charged £150.

Viscount Ullswater

I have listened with very great interest to my noble friend's remarks in moving this amendment. I have every sympathy with what she is aiming to achieve. Fortunately, nuisance claimants are not a common problem in the industrial tribunal system, but they can occur, as my noble friend has so clearly demonstrated. Cases such as she has mentioned create entirely unnecessary and unjustifiable burdens on employers who have to defend themselves against unwarranted accusations. They are also a considerable drain on the tribunal resources and cause immense amounts of futile work for the staff and judiciary, especially since it is one or two particular regions which generally bear the brunt of these claims. This is particularly undesirable at a time when the tribunals are under considerable pressure. I am very grateful to the noble Baroness for bringing this matter to our attention.

I have to say to the noble Baroness, Lady Turner, that the deposit procedure is not yet in operation. Even if it were it would he doubtful that it would be sufficient to deter such a determined litigant as we would aim to cover who might be prepared to bring as many as 100 hopeless cases before a tribunal. A vexatious litigant would already be accustomed to paying costs for bringing frivolous, vexatious or otherwise unreasonable cases. Industrial tribunals already have a pre-hearing assessment procedure under which a party may be warned that costs can be awarded if they continue with their cases and lose. That procedure has been unsuccessful in the cases we have been discussing and costs have been awarded without deterring further applications.

I welcome the proposal to give the Employment Appeal Tribunal (as a court well versed in industrial tribunal procedures) additional powers to deal with vexatious litigants before itself and industrial tribunals. Nevertheless, I must ask for a little more time to consider the best way to tackle the problem. I hope the noble Baroness will agree to withdraw her amendment on the understanding that the Government will bring forward at Report stage their own amendment extending the power of the EAT to make orders which will restrict the ability of vexatious litigants to take proceedings in the Employment Appeal Tribunal and industrial tribunals. I ask my noble friend to withdraw her amendment.

Lord McCarthy

Before the noble Viscount sits down, perhaps I may say it is amazing that the ability to introduce the deposit procedure has been in existence since the introduction of the 1990 Act and we are told that it is not yet operative. Is that possibly due to the fact that those who operate the tribunal do not find any requirement for it? May it not be that there are no vexatious litigants and therefore we are running before we walk?

Viscount Ullswater

I find it difficult to go along with what the noble Lord has said when we have just heard in Committee the remarks of my noble friend Lady Gardner. I understand that there are such litigants and I shall need to consider very carefully whether further steps should be taken.

Baroness Gardner of Parkes

I thank my noble friend for that answer. We discussed the matter of vexatious litigants and I remember that it was a factor in deciding on £150 when it was debated last time. As my noble friend said, even the costs that have been awarded have not deterred people. Local authorities and health services in particular would be very grateful to feel that tribunals had these powers. I accept that my noble friend will need to look at the exact way of wording this and how it should be done. I would be happy for him to bring forward a government amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Functions of ACAS]:

Lord Wedderburn of Charlton moved Amendment No. 235: Page 51, line 25, after ("substituted") insert ("to encourage, in accordance with article 118B of the Treaty of Rome as amended, the promotion of consultation and negotiation within the social dialogue between management and labour,").

The noble Lord said: This amendment concerns the functions of ACAS. There are many who would think that nothing is more important to the operation of our industrial relations and its institutions than the operation of ACAS. Therefore, when a Bill comes along to amend the central functions of ACAS for the first time since 1975, it should surely be taken very seriously.

Since 1975 ACAS has had the general duty to promote the improvement of industrial relations—and that stays—but it has also had a particular duty to encourage the extension of collective bargaining and development, where necessary, or reform of collective bargaining machinery. The Government's Bill in its first version cut out the references to encouraging and reforming collective bargaining and now, in the version that the Committee has before it, they have substituted, in particular, by exercising its functions in relation to the settlement of trade disputes", maintaining the excision of all reference to collective bargaining. Indeed, it is a matter of great concern just what will be the general jurisdiction of ACAS if the provision goes through as it stands.

I have taken a reference point which is short, as it were, of extending and reforming collective bargaining. In a sense it offers the Government half of their point, but my amendment retains another half which I should have thought must be part of our obligations in regard to Article 118b of the European Treaty. I refer to the promotion of consultation and negotiation within the social dialogue. I am using Euro-speak, for want of anything better, but it is now the official language of our law, so I use it. I do not advance this as necessarily believing that the social dialogue is an answer to many problems in itself. There are some of us who believe that the social dimension of the treaty has been, as M. Delors said himself the other day, notably lacking in development in the past year or so. It is a serious problem. But the Government adhere to the treaty—the treaty without Maastricht but it will not be any different after Maastricht because this is one of the articles which the Government maintain in its present form by not adhering to the so-called social chapter. This is what the Government believe they are obliged to honour—Article 118b.

The social dialogue is there referred to as being the job of the Commission to develop. The article states: The Commission shall endeavour to develop the dialogue between management and labour at European level which can lead to agreements If the Commission is to be able to do that job under the treaty it cannot possibly succeed if it is frustrated by governments who refuse to lend a hand at the national level, not least because agreements at European level—this is the real problem with them—can only take effect, not because of the doctrine of subsidiarity but because of the facts of life, in the different national diverse legal and industrial systems. Therefore the Government must owe some kind of duty here. What that duty is will surely be carried out in terms of inquiry, advice and encouragement—not necessarily by way of legal duty but by encouragement by a body such as ACAS. Indeed there is no other. It would seem to follow that with the Government now abandoning the job of ACAS to encourage and extend collective bargaining they cannot leave the functions of ACAS without some point of reference in regard especially to consultation and, indeed, on occasions under Article 118b, to negotiation.

To develop this machinery one could have put the matter much higher. It can be said that the Government are obliged to develop such machinery as that developed at European level through the machinery of the treaties. Why is it that ACAS is not brought into this field? If the Government think carefully about it they will do so. I shall not develop any more the points involved. I am hopeful that the Government will say that they will have another look at the matter. I beg to move.

Lord Rochester

Whatever the merits of collective bargaining, there is no doubt that over the past few years there has been a marked increase in the extent to which such bargaining in industrial and other organisations in the United Kingdom has been replaced by dealings with individual employees. I can understand therefore why the Government have introduced the first part of this clause.

Nevertheless, have some sympathy with the amendment and what the noble Lord, Lord Wedderburn, said about it. In its 1991 report ACAS stated that in response to the Citizen's Charter, it had prepared what it called the ACAS Commitment. That committed the service to the way it carries out its statutory duty, among other things in improving industrial relations and fostering employee involvement.

Under the heading "Resolution of Disputes" it stated: Before providing assistance ACAS always first encourages parties to make full use of any agreed procedures they may have for negotiation and the settlement of disputes". That sentence accords closely with the statutory duty set out in Section 210(3) of the 1992 Act. However, under a further heading, "Advice and Assistance on Industrial Relations and Employment Issues" ACAS says that, among other things, it is committed to, encouraging the involvement of employees in developing solutions to problems as a prime means of promoting constructive employment relationships". That is a significant additional undertaking which does not yet feature among ACAS's statutory duties.

It may therefore be fairly said that the encouragement of negotiations by ACAS already has a place in statute, but the promotion of employee involvement does not. In those circumstances, I trust that the Government will agree that in removing from ACAS's statutory duties the encouragement of collective bargaining, they will replace that duty with one to encourage employee involvement in accordance with what ACAS is already doing.

Incidentally, ACAS also practises what it preaches for it has agreed with the trade union side of the ACAS Whitley Council a statement accepting that its staff has the right,

1. "(a) To be consulted directly or through their representatives so their views can be taken into account before management makes decisions which are likely to affect the circumstances in which they carry on their duties.
2. (b) To be informed on matters of concern to them as employees and to have the opportunity to respond to that information".

I understand that whereas in the past it was the practice of ACAS simply to offer its advice to organisations in need of assistance, now, wherever possible, the service involves employees as well as employers in seeking solutions to problems. That seems to be employee involvement in practice.

I hope that the Minister will respond constructively to the amendment. If, perhaps understandably, he or she does not feel able to accept it in its present wording, I hope that the Government will at least retain an open mind as to the merits of an amendment which I may bring forward at Report to give statutory backing to ACAS's existing commitment to encourage employee involvement.

10.15 p.m.

Lord Swinfen

I wonder whether my noble friend the Minister would be kind enough to advise the Committee where the full name of ACAS appears in this Bill. I do not think that it is satisfactory to legislate using only initials. I know that this refers to the 1992 Act, but the organisation's full name should appear in this Bill as well.

Lord McCarthy

We are grateful to my noble friend Lord Wedderburn for tabling this amendment which enables us to raise in general (and not merely in the terms in which he has tabled the amendment) the question of what the Government see as the functions and role of ACAS in the light of the changes that they are making to the statutory provisions. As my noble friend made clear, the Government propose to take out the reference to, in particular, encourage the extension of collective bargaining and, where necessary, the reform of collective bargaining machinery", which was the phrase on which in the past ACAS built the whole of its advisory functions. For a very short time, ACAS was called the Conciliation and Arbitration Service, but then as a result of reconsidering the situation it emerged as the Advisory, Conciliation and Arbitration Service. It has based its extended functions in the area of advice on that fact—on the fact that that was part of the statutory machinery and its title.

However, the Government have now come along wanting to replace those provisions so that the statutory definition of the functions of ACAS is, to promote the improvement of industrial relations, in particular by exercising its functions in relation to the settlement of trade disputes under Sections 210 and 212", which relate to the conciliation, mediation and arbitration functions of ACAS.

My noble friend Lord Wedderburn wants to include a second alternative revision referring to the Treaty of Rome and to the promotion of consultation and negotiation". I should, of course, be pleased if the Government agreed to that, but if they do not, what becomes of the other functions of ACAS? How far do the Government see this section, which stresses the central core of the role of ACAS as the settlement of trade disputes, as putting some kind of restriction on its activities?

When the Under-Secretary of State was asked on 2nd February in Committee in another place what he thought this was about he said: Amendment No. 231 modifies ACAS's statutory terms of reference to place greater emphasis on its core business of dispute resolution". Justifying the concentration on the core business of dispute resolution, he went on to say: At the time of competing demands for ACAS's services and general resource constraints we believe that it is right that the terms of reference provided for in the legislation should give a better steer to ACAS on where its strategic priorities lie".—[Official Report, Commons, Standing Committee F, 2/2/93; col. 676.] In other words, he was saying that its strategic priorities lie in dispute resolution.

It is well known that the ACAS council itself is concerned about the possible consequences of announcing that its core business is dispute resolution. Anybody who knows anything about industrial relations knows that one does not begin with dispute resolution—that is what comes at the end. Dispute resolution comes when one has failed. If one is trying to improve industrial relations, one is seeking to create a culture and approach in which problems are solved and progress is made. If, as the noble Lord, Lord Rochester, thinks, one focuses on involvement along the way, that is all very well, but one does not focus on dispute resolution because one hopes that there will not be any disputes or at least that any disputes will not come to a point where a solution has to be adopted through conciliation, mediation, arbitration and possibly industrial action.

A large part of what ACAS does has nothing to do with dispute resolution. There are its excellent advisory booklets, its excellent papers, its research exercises and the extended advisory services that it puts into any part of the private or public sector which wants it to do so. My question therefore to the Minister—I hope that he will find time to answer me —is: what does it mean if we say that the core business of ACAS shall be dispute resolution? Does it mean that its budget will be slimmed at this difficult time? Its approach is in many ways superior to the approach of the best consultancy, because not only does it have no axe to grind, and is not selling a particular package of means: it wants to find solutions and withdraw. It is the only consultancy of which I am aware that wants to get out of the business. Every other consultancy wants to get one on the hook. It will be sad, wrong and bad for industrial relations generally, if ACAS's core business focus means that it does not carry out all its other important activities.

Viscount Ullswater

I shall perhaps get a minor matter out of the way first. If my noble friend Lord Swinfen will turn to Section 247 in Part VI of the 1992 Act, he will see that it indicates the nature of ACAS, the words themselves and the acronym which is further referred to in the Act.

Lord Swinfen

My noble friend is kind to give me the reference in the 1992 Act, but my question referred to the Bill. It is pure idle draftsmanship not to have the full name in the Bill, which contains no definition of ACAS. It should be in the Bill. It is a matter of idleness on the part of the draftsman, not my noble friend, because it should be in the Bill that we are discussing.

Viscount Ullswater

I do not agree with my noble friend. Bills often make amendments to other Acts without one being able to read them like a book. One sometimes has to be clever to understand what effect amendments have on the main legislation. This is a proper way of going about things. I shall have to disagree with my noble friend.

Perhaps I may deal first with the point made by the noble Lord, Lord McCarthy. He complains that there is a change to Section 213 of the 1992 Act. He asks whether that is the right way to go about matters. Clause 35 deals with one function of ACAS only—the advice side. Rather than go into a whole list of things that it should do, it neatly puts into new Section 213(1): such advice as it thinks appropriate on matters concerned with or affecting or likely to affect industrial relations". I should have thought that that would have given ACAS a broader remit than the existing Section 213(2) gives it. It gives it a broader remit to offer appropriate advice in the right circumstances. I hope that the noble Lord will not feel that we are trying to slim down what ACAS is available to do.

I am speaking also to Amendment No. 236, which is grouped with Amendment No. 235. The main purpose of the amendments is to retain the redundant reference to "collective bargaining" in ACAS's statutory terms of reference. Amendment No. 236 makes this intention explicit. Amendment No. 235 disguises its aim a little by referring to the promotion of negotiation between management and labour.

For years ACAS has not actively promoted the extension of collective bargaining. ACAS will be the first to admit as much. Its activities have moved on with the times. These amendments take us back to the past, however much they try to conceal the fact by being dressed up in rather modish language about the EC's social dialogue.

The reference to consultation in the amendments is quite unnecessary. Clause 35 gives ACAS a general duty: to promote the improvement of industrial relations". If better consultative arrangements between employers and their employees can contribute to improved industrial relations the promotion of such consultative arrangements is clearly within ACAS's new terms of reference. Of course, if consultative arrangements are not calculated to contribute to an improvement in industrial relations, they are not the proper business of ACAS. I say to the noble Lord, Lord Rochester, that ACAS has the powers to consult where necessary and I do not believe that it needs any further powers.

Perhaps I may now turn to the social dialogue. Again, this reference is unnecessary. In lifting this idea from its proper EC context the use of the term is misleading, confusing and perhaps harmful. As Members of the Committee will be aware, "social dialogue" is the term used in the Treaty of Rome to describe the process by which the Commission seeks an exchange of views between bodies representing employers and employees at the European level. The topics for this dialogue are typically connected with draft Community legislation. Article 118B of the EC Treaty, as inserted by the Single European Act, makes it clear that the "social dialogue", as so defined, is a matter for the Commission and the employer/employee bodies concerned. I do not believe that the noble Lord, Lord Wedderburn, and I differ on that. However, it is not the business of member states. There are social dialogue provisions in the Agreement of 11, but of course these will not apply to this country.

Apart from the in-company consultation that I have already discussed, the only other process that the term "social dialogue" could cover is one of elaborate national level consultations and bargaining. That smacks of a return to the stultifying and ineffectual corporatism of the 1970s. There certainly is no role for ACAS in all this.

Deleting mention of collective bargaining from ACAS's terms of reference will have desirable effects. It will confirm current practice and remove any uncertainty as to where ACAS's duty lies. It will help reinforce the message that collective bargaining should not be singled out for special status above any other form of employer-employee relations. And of course it will not prevent ACAS from conciliating in union recognition cases. The amendments seek to wipe out these potential gains and should therefore be resisted. I hope that with that explanation the noble Lord will see fit to withdraw his amendment.

Lord Wedderburn of Charlton

I apologise; I was noting the Minister's points in such depth that I failed to spring to my feet. Let me do so now. I never believe that the draftsman is idle. He may be ingenious and he may be inward but he is rarely idle. ACAS is clear what it is talking about.

I never thought that my reference to one article of the treaty to which the Government are bound and will be bound after Maastricht would set off such a volley; for instance, corporatist, confusing and harmful. If such descriptions go with what the Minister understands to be the social dialogue, he had better persuade the Government to withdraw from Section 218B.

He believes that my proposal is modish—I do not like being modish—and says that we need not retain this redundant reference. I do not follow any of that argument, partly because I disagree with the Minister on one issue of fact. He said that the social dialogue is concerned only with oncoming European Community legislation. With great respect, it is not. As regards the Social Chapter I am aware that the Government do not adhere to the "Agreement of 11", as he called it. My amendment specifically does not make mention of the Social Chapter agreement. It retains a reference to the article by which the Government are bound. An implication of the treaty must be that they have given their word to do what they can, when asked by the Commission, to help in social dialogue, negotiations or consultations. 'They should not simply say no to that request.

ACAS has a central role in that and I do not agree with the Minister that ACAS would necessarily be able to play its role despite—and I accept that it is there—the new Section 213. I give the Minister an example where I think he is wrong in fact. The bodies which constitute the so-called social dialogue—the European trade unions in the ETUC, the private sector employers, the UNICE, to which the CBI is affiliated (and I am glad to see the noble Lord, Lord Mottistone in his place), and the CEEP, the public sector employers—have made two or three agreements on the introduction of technology. Whether or not that could give rise to any kind of collective negotiation that could filter down through member states is actively under discussion. I am sceptical but there are those—and they are not all trade unionists or lawyers—who see that as an extremely important venture.

I hope that the noble Viscount will look again at this matter. I hope that he will take out all the nasty words. I hope that he will keep to Article 118B because that is as far as the Government will go and accept that the social dialogue is part of it. People are trying to see a way to a trans-national, European and wider, system of industrial relations which must be part of the new single market and the new trans-national economic market if working people are to have any chance at all of being protected across the frontiers.

I can see that the Government do not really believe in that and that it is why they have taken out collective bargaining from Section 209. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 236 not moved.]

Clause 35 agreed to.

10.30 p.m.

Lord Mottistone moved Amendment No. 237: After Clause 35, insert the following new clause:

("Claims

. At the end of subsection (3) of section 133 and subsection (3) of section 134 of the 1978 Act, there shall be inserted— (3A) For the purposes of subsection (3), a person shall be deemed to claim where that claim is express or can be implied from the overt acts or attitudes of that person." ").

The noble Lord said: This amendment reflects a view of the judicial committee of this House on the current position at common law. That is necessary as some commentators appear not to be interpreting Sections 133 and 134 of the 1978 Act in accordance with the common law.

CBI officials have made many representations to both ACAS and the Department of Employment concerning the way in which the service is interpreting its duty under this part of the law. In essence, in 1990 ACAS issued guidelines to its conciliation officers as a result of which officers were declining to help employers and employees reach settlements unless the employee, in the words of the statute, "claimed" action had been taken in respect of which he could complain to a tribunal. This has meant that a number of potential settlements have not been reached and, moreover, many employees have in effect been forced to initiate proceedings before an industrial tribunal in order to secure the services of a conciliation officer.

The CBI maintained that ACAS could infer a claim, rather than requiring an express statement to that effect from the employee. In support, one need look only to the case of Moore v. Duport Furniture Products Ltd (reported in 1982 at page 31 of the Industrial Relations Law Reports). In that case, the judicial committee of this House put beyond doubt the issue that claims could and indeed should be inferred.

As the Government have seen fit to amend provisions of the law which deal with ACAS's duties, it appears appropriate to consider clarifying at the same time an area which has been somewhat clouded. It is to be hoped that this will be achieved by putting in statute a clause which will reproduce the existing position as stated by this House exercising its judicial function.

I give an example of what I have been talking about. Let us suppose that W, a worker, is employed by E, the employer. After many years of employment on good terms, the relationship begins to run into difficulties due to W's conduct. E, without giving W any warning, dismisses him. W may well feel that this is unfair; but after much discussion he is persuaded to make an agreement settling the matter whereby he will receive a large sum from E and it will save everyone a lot of time and expense in going to a tribunal.

E and W then go along to an ACAS conciliation officer to have the agreement recorded, thus preventing any further claim to an industrial tribunal. The ACAS officer, however, following the guidelines issued by the service in 1990, refuses to act because, he says, W has not formally or expressly claimed that he was unfairly dismissed. In reality of course the fact that the employee himself believes the dismissal is unfair, and has agreed to the involvement of a conciliation officer, should be enough for the officer to infer a "claim" from the circumstances.

This is the problem for business at the moment. ACAS will not infer a claim even though it could do so from the "overt acts or attitudes" of the worker. The net result is that as it is only an agreement reached through the involvement of an ACAS officer which will preclude a subsequent tribunal complaint, the employer, having settled the matter, is still exposed to further proceedings. My amendment will make the position clear by stating in statute what case law already provides—claims can be inferred. I hope that my noble friend will give this matter special consideration. It seems to me a small point but one that could be of considerable importance to many people in business. I beg to move.

Viscount Ullswater

My noble friend's aim is to allow employers and employees to reach binding agreements in settlement of disputes between them without reference to the industrial tribunal system. I have every sympathy with his aims in seeking to promote binding settlements between parties. However, I have doubts about the means he suggests for achieving this.

My noble friend has suggested that it should be within the remit of ACAS to endorse agreements in which it had played no conciliation role. However, in cases where agreement has already been reached, it is by definition impossible for conciliation officers to seek to promote an agreement. There is no dispute outstanding, and therefore no valid role for ACAS to play.

My noble friend referred to the Moore v. Duport case, and in that he is quite correct. However, that is not the issue here. Where a person claims that action has been taken in respect of which a relevant complaint could be presented to a tribunal, it is not necessary that the claim is expressly made. It would include an implied claim which could be inferred from the overt acts or attitudes of the employee. That was the case in Moore v. Duport.

However, it is quite clear that it would be impossible for an ACAS conciliation officer to promote a settlement if one had already been reached. There would be no role for a conciliation officer in such a case. That is what we are considering here. The 1975 legislation which established ACAS's statutory responsibilities never intended that. ACAS should have a retrospective role in rubber-stamping such agreements, and the Government believe that its involvement in such cases would be neither proper nor an appropriate use of its resources.

The Government are, however, aware of employers' anxieties in this area. It is extremely important that the parties in such cases should be able to reach a final settlement which will avoid unnecessary tribunal claims, provided of course that there are adequate safeguards so that individuals are not coerced or misled into signing away their rights unawares.

We have consulted interested organisations on a proposal that agreements which settle an employee's claim and preclude his right of reference to an industrial tribunal should be binding if the employee has had legal representation. This proposal was supported by a substantial majority of the respondents, including employers and employers' organisations. Certain safeguards will need to be set, but I believe that this proposal offers an effective way forward which will very largely achieve the objective of my noble friend's amendment, albeit via a somewhat different route. I hope therefore that my noble friend will withdraw his amendment on this occasion after considering my comments this evening, and on the understanding that the Government will bring forward their own amendment on Report.

Baroness Gardner of Parkes

Is the Minister not aware that the present situation is a charade in many cases? Because employers and employees are aware that ACAS will not rubber stamp, as my noble friend has just said, they therefore pretend that no agreement has been reached and go along to ACAS for ACAS to act as if it has acted as conciliator, and then the agreement will be rubber stamped. That is a nonsensical situation.

I welcome the Minister's statement that people will be able to sign agreements. I understand that each party must have legal representation because, as he said, unwise people might sign away their rights. That is good. However, what is wrong with ACAS having the role of rubber stamping agreements which have been reached logically? At present, much ACAS time is being taken up by cases in which agreement has been reached but cannot be acknowledged to have been reached in order for ACAS to be used.

Viscount Ullswater

The practice of validating or rubber stamping agreements reached privately between employers and employees represented such a considerable drain on ACAS's resources until it ceased after ACAS was given legal advice in 1990 that it had no statutory role to do that. In 1989, the year before the service was withdrawn, ACAS dealt with well over 17,000 such cases, representing 36 per cent. of the total number of cases received.

I am glad that my noble friend supports the proposition that I have made, and I hope that both she and my noble friend Lord Mottistone will support me on the way forward that I have suggested.

Lord Mottistone

I am most grateful to my noble friend for his lengthy reply. I am also grateful to my noble friend Lady Gardner for her intervention, which brought out the further figures which show what the situation was before 1990. I must confess that I was puzzled as to why 1990 was a key date, having worked with ACAS in earlier years a great deal.

I fully understand what my noble friend said. I look forward to seeing his amendment at Report stage. I hope that it will provide the solution which we are all keen to see. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Fees for exercise offunctions by ACAS]: [Amendments Nos. 238 and 239 not moved.]

Clause 36 agreed to.

Clause 37 [Careers services]:

Baroness David moved Amendment No. 240: Page 53, line 2, after ("State") insert ("through local education authorities (in England or Wales) or education authorities (in Scotland), or from persons of any other description following the agreement of the relevant local education authority or education authority")

The noble Baroness said: We now come to Clauses 37 and 38 which deal with the careers service. I am sorry that these important clauses are being discussed at this time of night. I propose to move my amendments briefly so that we have the Minister's response, and I hope that we can return to the matter at a more civilised hour at Report stage to discuss it properly.

Amendment No. 240 is linked with Amendment No. 247. The purpose of the amendments is to ensure that the service is provided through LEAs, or education authorities in Scotland, or a body approved by them and to guarantee local authority involvement in careers service provision.

LEAs assumed responsibility for delivery of the careers service as a result of the provisions of the Employment and Training Act 1973. In 1990 the Employment Department reviewed the arrangements for the provision of careers advice to young people, resulting in the Bruce Report. The local authorities' response was that they should continue to provide the careers service, and it is widely believed that others who were involved in the exercise held the same view. However, the report of the review was not made public, and that is a pity. Leaks suggested that the report recommended retaining the status quo. The Government so far have not brought forward any evidence to suggest why there is a need to change the current arrangements.

We suggest that there are three main reasons why local education authorities should continue to be involved in the provision of the service: to maintain coherence with education service provisions; to provide a check on the impartiality of the advice provided; and to ensure local accountability of the arrangements provided.

There has been remarkably little clarity about what is meant to happen under the new arrangements. Perhaps the Minister will advise us. In the meantime I hope very much that my plea for local education authorities, or a body approved by them, to remain with that commitment to a service will be agreed. I beg to move.

10.45 p.m.

Lord Mottistone

I wish to support in principle what the noble Baroness, Lady David, said. The careers service is far more important than has been recognised over the years. It has not recruited as high a standard of people as is clearly necessary in order to help young people to obtain jobs when they get out into the wider world.

I believe that most of the amendments to which the noble Baroness has put her name require careful thought by my noble friend. In principle they seek to strengthen the position of the careers service in the future that unfolds before us. I hope very much that the Government will be able to do something in that respect. I do not propose to take part in debates on further amendments because that will add further speech, and we are running out of time.

Baroness Seear

I strongly support the amendment. The argument as to who should control the advice given to youngsters has continued for over 100 years. After a great deal of argument it was decided that the person giving the advice should consider primarily the career development of the young person and not the satisfaction of local labour market needs. That is what the argument has been about over the years.

It seems plainly right that the service should be regarded as part of the education service which local authorities should be offering to young people. Members of the careers service should be going into schools at an early stage to give youngsters advice on subjects that they ought to be studying in relation to the careers that they might follow. The provision knits those people into the education service. That surely is where they should be. Good advice about careers from a longer-term view than many youngsters are likely to take is absolutely vital if we are to have properly trained people. That is part of the advice that the careers service can give relating to the market opportunities that one hopes will come their way later.

Lord McCarthy

It is to the credit of the Government that they have never come before us with any criticism of the way in which the careers service operates at present. Not only have they not made a case, they have not made a case against the existing system.

There is now an opportunity for the Minister or the noble Baroness to state whether there are criticisms, or defects. Are there matters which were not published in the report but about which we ought to know? On the face of it, all the interested parties, whether they are the education profession, those who use the careers service, bodies such as MENCAP and so on which are concerned with the disabled, do not understand why the LEAs cannot continue to be involved in the service. If the Government are making such a sweeping change, they must criticise the existing situation and say why the biazarre tripartite method that they have invented will get rid of those criticisms and why we should support it. Now is their opportunity.

Lord Stoddart of Swindon

I too wish to support the amendment moved by my noble friend. I simply cannot understand why the Government wish to centralise the service—because that is what they are doing. They seem to be centrist mad. They must take away everything that local authorities do and put it at the centre. Local authorities have run the service for donkey's years; they used to run the youth employment service. I was the chairman of the further education committee in the county borough of Reading: it ran the youth employment service extremely well. So far as I know, there have been no complaints about the way local authorities and their staff run the existing service in co-operation with other organisations.

As my noble friend Lord McCarthy said, the Government should explain to the House and to the people, particularly those who work in the careers service, why it has been thought necessary to remove the service from the local authorities who have run it so well for so long.

Baroness Denton of Wakefield

Perhaps I may start by agreeing wholeheartedly with the noble Baroness, Lady David, that it is unfortunate that this important matter should be dealt with at this hour. I appreciate the organisation she proposed with her amendments.

The Bill recommends a fundamental change which reflects the importance which the Government attach to careers guidance, both in helping individuals to achieve their potential—I agree wholeheartedly with the noble Baroness, Lady Seear, that the potential for the individual is absolutely crucial —and also in relation to securing an efficient labour market which means work and opportunity.

We seek to secure the future of careers services through new management arrangements that enable them to reflect the changing needs and circumstances of the local community. I know that there is a strong feeling within careers services that they cannot stand still. But we certainly do not underestimate the valuable work which has been done.

In proposing the amendments, the noble Baroness seems to suggest that it is unacceptable to require each and every careers service provider to undertake a thorough review of its operation; to establish arrangements against new and demanding standards; and to demonstrate its accountability to its customers. Obviously, we cannot agree.

It is not just change for the sake of it. We need to recognise that arrangements can be better if options are widened beyond the current constraints of a local education authority. An important advantage of the new arrangements is that they will enable careers services to be provided as a joint venture between the education and employment sector. That will bring with it a better mutual understanding, respect and trust and a significant degree of consensus on aims and intent and open communication. Many training and enterprise councils already welcome these kinds of arrangements and I am confident that we will see them developing closer relationships with education and economic communities.

We want the high standards achieved by the best to be available everywhere and, indeed, improved upon. We believe that organisations which aspire to provide services need to demonstrate, through competitive bidding, that they can meet demanding quality standards and sustain them.

The amendments go to the heart of what we propose and would have a completely negative effect. Accepting them would place a stranglehold on change and continue to allow current providers a monopoly. They would restrict opportunities, not open them up, by allowing the current providers to decide who manages services. This might be more readily understood if the Bill prevented local education and education authorities from providing careers services, but it does not. It fosters genuine competition in which the authorities are absolutely free to play their part. If the local education authorities are everywhere as good at providing careers services as supporters of the amendments claim, they have nothing to fear. I hope, therefore, that the noble Baroness will withdraw her amendments.

Baroness Seear

Before we make a final judgment, I ask the noble Baroness a question. She talks about competition between people, and says that they will be tested as to who provides the best service. Who is the judge of all that? If it is the Secretary of State, is that not once again a centralisation? I have to put it to the noble Baroness (it cannot be news to her) that we are increasingly conscious—I say "conscious", not "apprehensive"—that the Government have as great a vendetta against local authorities as they seem to have against trade unions and that one has only to say that an organisation is run by a local authority for the Government to believe they have to alter it. We cannot find any other reason why they want to alter it. Is that the reason? It is yet again an attempt to undermine local authorities.

Baroness Denton of Wakefield

I say to the noble Baroness that the Secretary of State will make arrangements with the providers through the guidance that she will issue. It is not a vendetta against the local authorities. As I said earlier, local education authorities are all in a position to compete for provision, and, if they are indeed good, presumably will be able to hold that provision. But great change is going on in the community, and this recognises some of the change.

Baroness Seear

What are the criteria of goodness in such circumstances? How are they to be judged and by whom? What are the qualifications for judging of the people who will make the judgments?

Baroness Denton of Wakefield

Those are some of the issues which the amendments will bring forth in our corning debate.

Baroness Lockwood

The Minister has not answered the questions which my noble friend Lady David asked. She has not in any way demonstrated how the Government, through this clause, will provide a better service than the one that is already provided by local education authorities, very often in co-operation with TECs and other organisations. The local authorities are by no means taking exception to co-operating with other bodies. Surely a competitive market determined by the Secretary of State will not be able to provide a local service meeting local needs or being accessible to local people. Accessibility is very important. I do not think that the Minister has justified the alteration to the present situation which the Bill now proposes.

Lord Stoddart of Swindon

Before the noble Baroness replies, she has not properly answered the questions put to her by the noble Baroness, Lady Seear. What criterion will be used to judge the competitive tenders? The mind boggles at competitive tenders for this sort of work. Will they have performance standards; will there be quality standards; or is it just to be a question of the lowest bidder? Or perhaps the Government will make a charge; perhaps they will make it the highest bidder. We need answers to those questions, and I hope that the noble Baroness will give them.

Lord McCarthy

In that context, is it not true to say that one will read the Bill in vain, and will look in vain for a schedule to find anything at all about standards and quality, or any guidance whatsoever. We all depend upon what the Secretary of State does.

11 p.m.

Baroness Denton of Wakefield

At the heart of this strategy is the duty on the Secretary of State, who is answerable to Parliament. The Secretary of State will have to be confident and able to demonstrate that the services she will have a duty to secure are meeting the obligations. In order to do that, she will have to set clear standards, monitor performance and audit and inspect overall arrangements.

I appreciate the concern of all sides about the need to uphold quality. The quality of services will be ensured through a comprehensive quality assurance strategy. Securing the provision of services through contracts requires considerable precision in specifying the purpose of services, the results to be achieved and the standards against which performance is to be measured. In turn it will require greater discipline in administration and management of services.

Work is already in hand to establish a new careers service standards, future funding and audit arrangements. They are not being developed in isolation. They are the subject of extensive consultation with providers and stakeholders and they will be extensively piloted and tested.

Baroness David

I thank my noble friends who have supported the amendment. It is quite clear from the answers, which I consider entirely unsatisfactory, that the Government do not have a clear plan to work on. The careers service is a relatively small service. There are under 4,000 careers officers in the country. Who will do the bidding for what? It is totally incomprehensible. What is going to happen?

I do not intend to divide the Committee at this time of night, though I feel very much inclined to do so. I shall read what has been said tonight, but I do not think that I shall make much sense out of it. We shall certainly come back to this issue at Report stage. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 241 had been withdrawn from the Marshalled List.]

Lord Swinfen moved Amendment No. 242: Page 53, line 14, at end insert: ("() In exercising his functions under subsection (1) the Secretary of State shall have regard to the requirements of disabled persons or persons having learning difficulties.").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 243 and 256. The first two amendments are designed to place a duty on the Secretary of State to ensure that people with disabilities or learning difficulties receive appropriate careers guidance. Amendment No. 256 aims to ensure that the careers staff who give that guidance have the appropriate skills and training. This follows the precedent set in Section 4 of the Further and Higher Education Act 1992, which places a similar duty on the new further education funding council.

This group of amendments will ensure that deaf and deaf-blind people get the communication support that they need, and that careers service officers understand the needs of blind and partially sighted people and the problems faced by those with physical disabilities or learning difficulties.

Of those leaving school each year only a few need specialist help. For example, I understand that in Surrey there are about 6,500 pupils in year 11 and of those only 200 to 300 will need the services of a specialist officer. Services winning contracts may be tempted on financial grounds to ignore the way in which specialist training and support might benefit those clients. People with disabilities or learning difficulties will lose out if inappropriate placements are made and the cost will then be borne not only by them but also by local education authorities, social services departments, further education colleges and, eventually, the taxpayer, who funds welfare benefits to those not given a chance to develop their full potential to live and work independently.

Perhaps I may give an illustration. Christopher and Jonathan took their GCSEs last year. Both have muscular dystrophy. They are in wheelchairs and need round the clock assistance. Christopher is very severely disabled. Both want to take B.Tec firsts, but no local college could cater for their needs. An out-county residential placement at a specialist college was estimated at £27,000 a year for each student and was not favoured by the parents. Because of their condition, the young men have a shortened life expectancy.

The specialist careers officer knew that students in higher education with care needs could use community service volunteers. Under the community service volunteers independent living scheme, he liaised with the community service volunteers, the local college and the director of education and social services to set up a scheme for each of his clients. Both are now living at home taking qualifications at a local college with the help of their community service volunteer. The cost of each student to the local authority is just £6,500 per year.

The specialist careers officer arranged a placement to meet the aspirations of his clients and their parents' wishes, and gained value for money. He had the specialist understanding of his clients' needs; the specialist knowledge of available provision, and the expertise in working with other specialised agencies. I beg to move.

Baroness Darcy (de Knayth)

I too would like to support the amendments, briefly but warmly, as does my noble friend Lord Rix, who has had to leave to honour a previous commitment.

The Government made welcome promises in the other place to issue guidance and to consult disability organisations over the preparation of guidance. But, as the noble Lord, Lord Swinfen said, we need specific mention on the face of the Bill. Not all school leavers with disabilities and learning difficulties need specialist careers advice, but for some it is crucial if they are to succeed beyond school. It is precisely because we are dealing with a small group that it is important that they are not overlooked.

In the long run better careers advice means that more people with disabilities and learning difficulties will succeed in finding jobs, though it can be more expensive to provide a specialist service. As the noble Lord, Lord Swinfen, said, some of those bidding for contracts may be tempted not to provide specialist careers advice and the amendments would ensure that they do.

There is a precedent for the first two amendments in the Education Reform Act 1988 and the Further and Higher Education Act 1992, where specific duty to have regard has been acknowledged by disability organisations to have been both useful and effective. SKILL—which is the National Association for Students with Disabilities, of which I have the honour to be the president—believes that those transferring from education to employment are even more in need at this stage of specialist support.

The first two amendments should appeal to government. Whenever they oppose antidiscrimination legislation they have said very firmly that they prefer to tackle the problem piecemeal with carefully targeted legislation. So specific mention on the face of the Bill of people with disabilities and learning difficulties would help this piece of legislation to find its mark.

Lord McCarthy

We should perhaps emphasise the mildness of these three amendments. As has been said, the key amendment is Amendment No. 242, which states: In exercising his functions under subsection (1) the Secretary of State shall have regard to the requirements of disabled persons or persons having learning difficulties". The noble Baroness or the noble Lord may say, "Well, they would do that, wouldn't they?" But as has been said by the previous speaker, there are precedents for having provisions of this kind on the face of the Bill. They have been found to be reassuring and it is a modest request.

Amendment No. 243 merely defines, for the purpose of the section, what a disabled person shall be. I do not see how the Government can possible lake exception to that. Amendment No. 256 merely asks to make arrangements to, secure the services of appropriately qualified specialist staff". In each amendment the Government could say, "They are all unnecessary. Of course we will do all of them". But we know that there is considerable anxiety in the field that the officers at the moment are not sufficiently trained in specialist skills; there is anxiety also in regard to charges. There is considerable anxiety over a wide field and by accepting the three modest amendments, the Government could do something to mitigate that anxiety.

Lord Renton

I too support the amendments. I wish to make only one small point on Amendment No. 242. Instead of the words, disabled persons or persons having learning difficulties", the provision should read, disabled persons and persons having learning difficulties". That can easily be adjusted.

When one is trying to create a public obligation to be carried out by a Minister of the Crown it is generally understood that express words, not merely implied words, are needed in the statute. If one wants to ensure that disabled people and those with learning difficulties are to have the benefit of these provisions I suggest that they be expressly referred to and the matter cannot merely be governed by inference.

I should like to mention briefly Amendment No.256. It is quite clear that if that work for such people is to be properly done it will have to be carried out by properly qualified staff. That is another matter where one should aim for certainty. I hope that my noble friend will accept these amendments or something on these lines.

Lord Swinfen

I should like to reassure my noble friend Lord Renton. If the Committee accepts these amendments I undertake to bring forward an amendment at Report stage to change the word "or" to "and".

Baroness David

I strongly support these amendments. I believe that what we all fear is that when there is competitive tendering there will not be the same enthusiasm for having careers staff with specialist knowledge to look after the disabled and those with learning difficulties. It is very important that these amendments are in the Bill.

Baroness Denton of Wakefield

My noble friends Lord Swinfen and Lord Renton, the noble Baroness, Lady Darcy (de Knayth), and the noble Baroness and noble Lord on the opposite Benches rightly stressed the importance of this area. I believe it is essential that unanimity is achieved by handling these matters through the arrangements that the Secretary of State will make with providers and the guidance that she will issue. It is important that the youngsters to whom my noble friend Lord Swinfen refers have the same expectations wherever they are in the country.

There is already in new Section 8(1) a duty on the Secretary of State to secure provision of relevant services for helping people decide for what employments they are suitable, having regard to their capabilities. The focus and starting point from which services are provided is what people are capable of. That means it will be the Secretary of State's duty to ensure that the careers guidance and employment services offered by careers services will give proper regard to each individual's capabilities. The purpose of the legislation is to provide the overarching management framework within which careers services operate. The detailed prescription of services that is sought through these amendments is much more appropriate to the arrangements that the Secretary of State will make with providers, in particular to the guidance of a general character that she will issue which, since this is part of the arrangements, will be binding on them. That is how such matters are dealt with now and it is appropriate for them to be dealt with that way in future.

In making such arrangements the Secretary of State will need to be clear that her duty to able-bodied, disabled and those with learning difficulties is met. She will need to know that those with whom she makes arrangements (or directs) can and will fulfil that duty. This means that she will need to be satisfied that future providers have staff with the right skills and knowledge to meet the requirements of all clients. In particular, staff will need to understand how an individual's capabilities relate to his or her disabilities or learning difficulties. It also means that the Secretary of State will have to ask for information so that she can be sure that the duty is being fulfilled. This requirement will be spelled out in the guidance of a general character and the contract or directions.

Careers services have a long tradition of providing particular help to those who are either disabled or have learning difficulties and we intend to ensure that the tradition continues. I am happy to reiterate my assurance that we intend to include details in the guidance of a general character on how careers services will meet the guidance and employment service needs of those with disabilities. We shall be consulting widely in drawing up the guidance, in particular with those groups which represent the interests of those with disabilities and learning difficulties.

I hope that that assurance, which I gladly give, to see to it that in making arrangements the Secretary of State will note all the extremely important points that have been made this evening, will allow the noble Lord to withdraw the amendment.

Baroness Seear

One gets more and more alarmed at the idea that all wisdom is in the heads of the Secretary of State and her civil servants. How many of them have ever dealt with problems of this kind? We shall be advised by bureaucrats with no experience of this kind of thing. They will consult but they will judge. Why does the noble Baroness think that one will get a better result in this way than from local education committees, many of which have people of considerable experience, in close touch with the problems and answerable locally if things go wrong? We are told again and again that we should leave it to the centre. If we do that, we leave it to civil servants with no direct experience whatever.

11.15 p.m.

Lord Renton

Before my noble friend replies, I wonder whether she will bear in mind that the Minister in another place pointed out in Committee on 2nd February at col. 708 of the Official Report that there is standard guidance at present in advising people in these circumstances. However, he had to confess that there are wide variations in performance. Merely to repeat the present guidance and hope for the best does not seem to be enough. Therefore, I would suggest that something on the lines of the amendments could do no harm and indeed might ensure that the purpose that we all have in mind is achieved.

Baroness Denton of Wakefield

Perhaps I may reply to my noble friend Lord Renton first. I mentioned in my earlier remarks that the advantage of the Secretary of State being responsible is that there will be a uniformity and not the wide variations. The purpose of the legislation is to provide the overarching management framework within which the careers service operates. I say to the noble Baroness, Lady Seear, that it is not our intention to consult with the people who understand these matters and then ignore advice. There would be no point in consulting if that were the point. Perhaps I may also clarify that the Secretary of State sets the standards for the careers service. The standards are not set by local education authorities.

Lord Swinfen

I thank those who have taken part in the debate and also my noble friend the Minister. She has throughout her responses emphasised the fact that it is the Secretary of State who is responsible at the moment. If she re-reads the amendments she will see that the amendments make the Secretary of State responsible as well. It is a question of ensuring that it is the law that the Secretary of State should take these matters into account.

I do not really believe that the guidelines which my noble friend suggests will be made will be adequate, because without the law to back them up, they will not be carried out, as they are not carried out today. Will my noble friend give an undertaking either to look at this matter again between now and Report stage or possibly to meet me and representatives of some of the organisations for the disabled to discuss the matter? I am not satisfied with the answer that I have been given. If it were earlier in the day I should divide the Committee, but I shall not at this hour of the night because it will delay matters even further.

Baroness Denton of Wakefield

Before my noble friend sits down, shall be very happy to meet with him and some of the organisations concerned. I believe the fact that the matters will be in the contract or the directions for the organisation and the Secretary of State will have to ask for information to make sure that the requirements are being fulfilled, will give protection.

Lord Swinfen

I always wonder whether it is possible to enforce a contract. But I shall not go into that now. I am delighted that my noble friend has agreed to meet me between now and the next stage of the Bill. Under those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 243 not moved.]

Baroness David moved Amendment No. 244: Page 53, line 49, at end insert: ("(5) Any educational institution of the type referred to in subsection (3) of this section which is a further education corporation, a school maintained by a local education authority or education authority, a grant maintained school, a city technology college or an independent school admitting pupils under the assisted places scheme shall afford such reasonable access to persons appointed to provide services of the soil described in subsections (1) and (2) of this section as is necessary for the effective delivery of those services, provided that due notice is given of the need for access and that there is consultation about the arrangements for access.").

The noble Baroness said: In moving this amendment, I wish to speak also to Amendment No. 264. The purpose of Amendment No. 244 is to ensure that the provider of the service has access to the relevant educational establishments. Amendment No. 264 is to highlight the potential weakening of links between careers education in schools and any future guidance service. The careers service has to work through schools and colleges to make contact with the young people it serves. Good practice requires an effective agreement between the service and the school about the arrangements for access, the passage of information about individuals and the links between careers guidance and careers education within the institution.

However, from time to time isolated problems can occur which threaten such co-operation. An example might be where a school competing with other institutions for students is anxious to retain as many as possible in its sixth form and is concerned that guidance might encourage some to consider transferring to an FE college or seeking employment-based training.

While the main thrust of this amendment is to ensure that young people in educational institutions are given access to the careers service and to put beyond doubt the duty of the institutions to co-operate with the careers service in facilitating this, it may also be worth mentioning that the amendment should help to underpin the necessary liaison and co-operation to ensure that careers education in schools and colleges is integrated with the guidance provided by the careers service. It is important to remember that effective careers guidance will depend on effective careers education having paved the way for it. I beg to move.

Baroness Denton of Wakefield

The noble Baroness, Lady David, suggests in Amendment No. 244 that careers services should have a statutory right of access to schools and colleges, perhaps because LEAs will no, longer have the duty to provide services and will therefore not be in a position to secure access for careers service personnel. Possibly in future it may be that schools will attempt to bias the information which pupils receive and that they will attempt to encourage them to stay on at school rather than consider what might be more appropriate alternatives.

The record of the local education authorities in enabling careers services to have access to all schools has not been entirely satisfactory. There have been instances where LEAs have tried to prevent or discourage careers services from providing services to City Technology Colleges, grant-maintained and independent schools. Their pupils have a right to the advice of careers services.

There have been instances of less than perfect access being offered. There is no statutory right of access at present. In spite of this, or perhaps because of it, the careers service is welcome in the overwhelming majority of schools including a substantial proportion of schools in the independent sector. The amendment appears to suggest that headteachers, teachers and governors cannot be trusted to make the best careers education and guidance arrangements for young people in their care. Anecdotal examples of that appear to be isolated incidents. A recent survey by the careers service inspectorate found no evidence that this was happening any more frequently now than in the past.

There is much stronger evidence to suggest that careers services are welcome in schools and that there is generally a good working relationship between schools and careers services. We want to ensure that that continues. Giving careers services a statutory right of access to schools—a power only given to HMI at present—could well be damaging to this relationship.

Turning to Amendment No. 264, we believe that the importance of a close working relationship will continue to be necessary to the effective provision of careers advice. Careers education is a cross-curricular theme within the national curriculum. At national level, it is therefore the responsibility of the Secretary of State for Education with advice from the National Curriculum Council. Consultation and co-operation between the two departments responsible for careers education and the careers service on these matters is well established. There is no need to impose a duty on the Secretary of State for this to continue.

The authority responsible for the provision of careers education in each school is the school governing body. It would be impractical to place a duty on the Secretary of State to ensure that the provision of careers services was planned at local level in consultation with the governing bodies of each school.

I do not wish to reject the intention behind the amendment and therefore we will be providing both strong encouragement and formal guidance which will ensure that the close working together between schools and careers services which characterises best practice will continue and develop. I hope that that reassures the noble Baroness.

Baroness David

I thank the Minister for her reply. As I have been surprised by some of her comments, I should like to take advice before deciding whether to bring these amendments back on Report. They have given me the opportunity to question the wisdom of splitting the careers service from the education service. The 1973 Act was universally welcomed because it recognised that the careers service was part of the wider education service. As I said, I shall take advice but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Skelmersdale)

I understand that Amendments Nos. 244A to 255 have been mis-attributed on the Marshalled List. Therefore, I shall call the noble Baroness, Lady David, to move Amendment No. 244A.

Baroness David

No. I should perhaps explain that this is something to do with the printing. Amendment No. 244A belongs to my noble friend Lord Stoddart, but Amendments Nos. 245 through to 255 belong to me.

The Deputy Chairman of Committees

In that case, I call the noble Lord, Lord Stoddart of Swindon, to move Amendment No. 244A.

Lord Stoddart of Swindon moved Amendment No. 244A: Page 53, line 49, at end insert: ("() It shall be the duty of the Secretary of State to ensure that those appointed to administer the arrangements made under this section hold the Diploma in Careers Guidance or a recognised equivalent.").

The noble Lord said: Perhaps I should say at this stage that I act as an adviser to the National Association of Local Government Officers. It is vital that properly trained people continue to deliver these services and it is by no means certain, under the Bill, that that will be so. There is a danger that the service will be fragmented in such a way as to ensure that it becomes unrecognisable as a careers guidance service, staffed by people who have no background or experience and who lack a properly recognised national qualification. Until now, the service has been staffed by experienced and motivated people, many of whom hold the Diploma in Careers Guidance, a qualification recognised by the Local Government Management Board as the appropriate qualification for careers guidance officers.

I trust that it is the Government's wish to retain and recruit properly qualified staff. Indeed, I believe that it is essential that they should do so. Will they give the assurance that this qualification and others continue to be relevant and recognised? I beg to move.

11.30 p.m.

Baroness David

Amendment No. 258B in my name is supposed to be grouped with Amendment No. 244A. I hope that the Minister agrees with that. I believe that that was the grouping arranged. The amendment tries to achieve the same thing: to ensure that staff engaged to deliver services have the appropriate competences in accordance with agreed national standards that the Secretary of State shall approve. The amendment is designed to make it obligatory that all staff employed are competent to perform the duties necessary under the contract and that contractors employ skilled, trained and competent guidance practitioners.

The Government are committed to high quality public services. That is what the Citizen's Charter is all about. Quality requires standards, and those providing services must meet such standards. The Bill is about the change in control and management of the service. It should not water down, or diminish in any way, the entitlement of clients to careers guidance of quality.

The needs of clients vary according to their own circumstances, whether, for example, having high academic ability or special needs. There are important issues to address, such as gender and race, which require a wide range of skills, training and competences in staff. All of that must be secured through specialist training.

Baroness Seear

If she looks back into the history of the battle—that is what it was—between the Department of Education, local education authorities and the Ministry of Labour, as it then was, the noble Baroness will find that the people employed by the Ministry of Labour to do the work did not aspire to qualifications. That is one of the reasons why many of us were extremely glad when the service went to the local education authorities. They put emphasis on qualifications, something which had been noticeably absent when it had been in the hands of the Department of Employment.

Baroness Denton of Wakefield

I take note of the remarks of the noble Baroness, Lady Seear, on the history of the matter. I shall reply first to the noble Lord, Lord Stoddart. Under Amendment No. 244A anyone who did not hold the Diploma in Careers Guidance or a recognised equivalent would be prevented from administering services. That would be extremely restrictive. It would in fact prevent some people who are currently and successfully involved in the administration of services from being so in future. It would prevent the administration of services benefiting from the additional knowledge and expertise that people with professional qualifications in fields other than careers guidance might bring.

We want to widen, not narrow, the base of expertise and knowledge that is brought to bear on the operation of careers services. That is why we have provided a power for services to be run as joint ventures.

Let me reassure the noble Lord that when making the arrangements the Secretary of State will have to be satisfied that whoever she contracts with has sufficient expertise to provide the service that she has a duty to secure. That includes sufficient professional competence in the field of careers guidance.

The amendment tabled by the noble Baroness, Lady David, appears to want the Secretary of State to set up a certification or licensing procedure for staff. That is unnecessary. Currently there is a lead body for advice, guidance and counselling, which is meeting under the auspices of the National Council for Vocational Qualifications to establish NVQs for careers guidance staff. When this process is complete, the NVQ framework should provide the necessary statements of competency and standards that will be required for work in careers services. Current careers service practitioners are fully represented on this lead body.

Surely the noble Baroness would expect the department, which established the NCVQ and introduced the Investors in People initiative, to give a high priority to ensuring that staff are properly selected, trained and professionally developed for their demanding task. There seems to have been a sea change in the Department of Employment from the Ministry of Labour.

The national standards that providers will have to achieve will be set out in the Secretary of State's guidance to future providers. In short, she will be expected to act reasonably and responsibly in determining who is competent whether or not such an amendment as is before us is contained in the Act.

The Secretary of State can only make arrangements with people who are competent to provide the services she has a duty to secure. These providers will have to demonstrate their competence through the proposals they will make, which will be judged against the criteria that the Secretary of State will establish. I suggest therefore that the amendments are not necessary.

Lord Stoddart of Swindon

I listened carefully to what the noble Baroness said. Of course, she was right in saying that many people employed in the careers advisory service are dedicated and hardworking and they do not have professional qualifications. Nevertheless, I am anxious, as are the people in the service, that standards do not drop. The service should be under the leadership of properly-qualified people; they should have the recognised and relevant qualifications.

The noble Baroness gave some comfort that her department and the Secretary of State will continue to ensure that the people employed in the careers service are not only dedicated but under properly qualified leadership. I shall read carefully what she said in Hansard; but with that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 245 to 248 not moved.]

Baroness David moved Amendment. No. 249: Page 54, line 20, leave out ("or").

The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 251. Amendment No. 249 is a probing amendment to ensure that the current arrangements where authorities provide a joint service can continue under the Act. The amendment attempts to clarify a position, which does not emerge unambiguously by the current wording of the proposed new Sections 10(1) (a) and 10(1) (c), by adding a further subsection, 10(1) (d).

New Section 10(1) (a) implies the Secretary of State making arrangements with education authorities singly. New Section 10(1) (c) implies that joint arrangements should involve "persons of any other description". The proposed new Section 10(1) (d) would allow the Secretary of State to make arrangements with two or more education authorities acting jointly. That seems a sensible further choice as there are currently arrangements where co-operative activities between education authorities are operating with the support of the Department of Employment. The best example of inter-authority co-operation has been the London Central Careers Unit, LCCU, which is provided and managed by the Corporation of London on behalf of a consortium of 34 London boroughs and contiguous county authorities. It has the active support of the Department of Employment and fulfils guidance given by a previous Secretary of State, Mr. Norman Fowler. It works with individual TECs on specific projects but its advantage is that it can offer an objective approach across a metropolitan area which is wider than a single TEC boundary.

However, that is stated only by way of example. The need for a co-ordinated approach to central London has been continually re-emphasised and the arguments for it have not changed since its inception in 1980. Indeed, the need for that arrangement to remain stable while the adjustments to more parochial arrangements are carried through can be clearly seen to be of advantage both to employers in central London and all young people in London and the South-East.

That looks as though it can be covered by the existing proposed provision in Section 10(1) (a). A joint operation between LEAs and the careers service can offer a number of advantages: stronger relationships with employers achieved through the concentration of resources for employer contact and liaison; rationalisation of other specialist expertise; constantly up-dated data on current vacancies across a whole area; provide for a given area on a coherent, co-ordinated basis in advance of a relevant partnership emerging or, if other alternative arrangements do not emerge, can offer the opportunity of reduced unit costs. I beg to move.

Baroness Denton of Wakefield

The noble Baroness said that this is a probing amendment. I hope to be able to reassure her. The Secretary of State is already able to make arrangements with local education authorities acting jointly under the proposed legislation which makes the amendment unnecessary. Section 10(1) (a) enables the Secretary of State to perform the duty imposed by Section 8 by making arrangements with local education authorities. Such arrangements would be voluntary on both sides. The Secretary of State would not be required to enter into arrangements with any particular authority in relation to any area. Also, a local education authority would be free to enter into arrangements or decline to do so. Consequently—and I hope that this will reassure the noble Baroness—the Secretary of State would be able to make arrangements with two or more authorities acting jointly. Therefore, the arrangements to which the noble Baroness referred would not be put at risk by this legislation.

Baroness David

I thank the noble Baroness for her reply which gives me some reassurance. I shall read it with care and, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 250 and 251 not moved.]

[Amendment No. 252 had been withdrawn from the Marshalled List.]

Baroness David moved Amendment No. 252A: Page 54, line 26, at end insert: ("provided that the Secretary of State has satisfied himself as to the local acceptability of the proposed arrangements and the suitability of persons party to the arrangements.").

The noble Baroness said: The purpose of the amendment is to ensure both local acceptability and accountability of the new careers services. This is an important amendment.

As regards acceptability, in order that the new careers services are able to operate effectively, they must be acceptable to the local stakeholders, which include TECs, LEAs, employers, schools, colleges and parents, as well as to their various individual clients —those in need of careers information or guidance and placing.

Careers guidance does not exist in a vacuum. Effective careers guidance is a process that depends upon the complementary roles of those whom I have just mentioned. In order to have accountability, it is important that the new owners or contractors are demonstrably accountable to the major stakeholders as well as to the individual consumers. Therefore, the new owners should involve representatives of the business, education and local communities through whom consumers will be able to hold careers services to account.

I have no doubt of the overriding considerations for acceptability and accountability. Those have been well argued by the nation's largest professional association for careers guidance practitioners—the Institute of Careers Guidance. It is widely supported across the education and business sectors. The institute argues that the new careers services must be impartial and client-centred; unbiased and without pressure from opportunity planners and providers; take full account of factors affecting labour markets; be equally accessible to all clients; promote equality of opportunity and be delivered by skilled careers guidance staff who follow a nationally agreed code of practice. This amendment will ensure local acceptability and accountability. I hope that it will be acceptable to the Minister. I beg to move.

11.45 p.m.

Lord McCarthy

This is another extremely modest amendment. The Government say they want to break up the local authority monopoly and pass that monopoly over to the Secretary of State. What this amendment suggests is that the Secretary of State, in carrying out his monopoly, should be under an obligation on the face of the Bill to do something about the, acceptability of the proposed arrangements". I do not see why the Government should object to this. I remind them that the provision on the face of the Bill —looking at it from the point of view of those who are involved in the service already—looks rather delphic, rather mysterious and rather worrying. The Secretary of State may make arrangements not only with local education authorities, or in Scotland with education authorities, but with, persons of any other description". Who is a person of any other description? Any person could be a person of any other description, because any person could fit any other description. We are talking merely about a person. What we are saying is that, before these persons of any other description or no description come in, we should have something on the face of the Bill saying that the Secretary of State who inherits a monopoly has to satisfy people locally on the acceptability of such a person.

Baroness Denton of Wakefield

I am not aware that I said the aim was to break up the local authority monopoly. The aim is to ensure that the high standards achieved by the best are available everywhere, and indeed are improved upon. The Secretary of State will have a duty to secure a continuous national service to national standards. She cannot leave the fulfilment of her duty entirely to the people in each locality. She will nevertheless have to be absolutely satisfied that the proposed providers of careers services have sufficient standing with, and support from, key stakeholders in the local community to give her confidence that the services which she has a duty to secure will be provided.

As I suggested in my earlier remarks, an important advantage of the new arrangements is that they will enable careers services to be provided as joint ventures between education and employment sectors and therefore increase mutual understanding and a significant degree of consensus on aims and intents. It is absolutely crucial that this is obtained and it will therefore be one of the aspects of the services around which criteria will have to be established for judging the quality of bids. I hope that that will enable the noble Baroness to reconsider her amendment.

Baroness Seear

As regards the term, persons of any other description", who is ruled out under that heading? Who is not a person "of any other description"? As the Bill stands, that term could refer to absolutely anyone. Who is excluded?

Baroness Denton of Wakefield

I would suggest that those people who are excluded are those who are not able to measure up to the standards required by the Secretary of State.

Lord McCarthy

Is a person "of any other description" a stakeholder? If we do not know who, persons of any other description", are, who are stakeholders? In the world of industrial sociology, stakeholders are employers and trade unions, The Government do not intend to refer to them. The term provides for all kinds of people. Who are stakeholders? That is a new term at this stage.

Baroness Denton of Wakefield

Stakeholders are, I suggest, those members of the local community who will enable the service to be administered and to be effectively operated within the community.

Baroness Seear

Are they not also the receivers? In the world of industrial sociology, they are very much the people who are on the receiving end as well. They are the consumers. I thought we were awfully keen on consumers these days. Are they not among the people of "any other description"?

Lord Hacking

I intervene as a lawyer and not as a sociologist. Stakeholders are the holders of money.

Lord McCarthy

Does the noble Baroness mean the holders of money? Are they the stakeholders?

Baroness Lockwood

I turn to another point. The Minister said that part of the criteria the Secretary of State would apply is that she would have to be satisfied about the local acceptability of the scheme, whoever the stakeholders were and whoever was involved. Will the criteria be published and made available? If they are not, how will the users and providers of the service know what criteria are being employed? Would not the amendment ensure at least that part of the criteria were clearly established in the Bill?

Baroness Denton of Wakefield

To reply to the noble Baroness, Lady Seear, of course the consumer is a crucial part of any arrangement. The arrangement of the careers service is import ant for the future of young people.

Other stakeholders, not strictly by the lawyer's definition, could be training providers, schools, colleges and other people who are involved in ensuring that the careers service offers the best to children. The Secretary of State has to set clear standards and criteria. Work is already in hand to establish these. Of course they have to be known to the parties who 'will be measured by them, otherwise it would be impossible for them to achieve the necessary performance.

Baroness David

According to my brief, stakeholders include TECs, LEAs, employers, schools, colleges and parents as well as the various individual clients, those in need of careers information, guidance and placing, for what that is worth.

Lord Hacking

That goes well beyond my legal dictionary.

Baroness David

We should set up mechanisms with local flexibility, allowing local people to decide what is best for them, within which we are sure that each local community is able to influence the strategic policies and priorities of their new local careers service. I do not believe, from what the Minister said, that we have that. Yet again I shall have to read what the Minister said and decide whether it is sufficiently satisfactory for me not to have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 253 to 256 not moved.]

Baroness David moved Amendment No. 257: Page 54, line 46, at end insert, ("and the Secretary of State shall publish annually details of any such payments which he has made or proposes to make during the year together with information on how the payments have been calculated.").

The noble Baroness said: The purpose of the amendment is to allow accountability and debate on the funding arrangements for the careers service. At present the careers service is funded by LEAs with some additional direct grant from the Employment Department calculated to take account of local labour market difficulties. Its budget will be publicly debated with the budget of the authority and open to public scrutiny. It would be regrettable if the change to direct central funding of the service was to lead to less openness about the funding. The basis on which funding is calculated should be made clear publicly and should be known to local careers services in order to demonstrate equity in the arrangements and to make clear how the funding relates to the task expected of the service.

There are particular worries at the point of transfer when the legislation is implemented and direct responsibility for funding passes from the LEAs to the Secretary of State. LEAs fear that the Secretary of State may remove from their expenditure settlement more than is actually spent on the careers service in order to ease the task of setting up the new arrangements. That is based on the experience of the transfer of FE colleges and grant-maintained schools.

In short, the Bill simply gives the Secretary of State the power to fund the service. It is vital that there should be clarity about the funding arrangements, including the transfer of funds from the LEAs to the Secretary of State, if there is to be an orderly transition to the new arrangements and a realistic prospect of local planning for the future of the service. I beg to move.

Baroness Denton of Wakefield

The noble Baroness is absolutely right. There must be an orderly transfer. There is already a procedure for publishing information on expenditure plans for careers services.

Each year the Secretary of State for Employment presents to Parliament jointly with the Chief Secretary to the Treasury a report which sets out objectives and expenditure plans for the next three years. This already covers the department's work with respect to the careers service and it can continue to do so. Similar arrangements exist in Wales and Scotland. I hope that that satisfies the purpose of the first part of the noble Baroness's amendment.

As for the second part, which would require the publication of information on how payments to careers services are calculated, it will not be possible for me to be as helpful. During the early stages of implementing the legislation the calculations for funding services will rely heavily on historical data: that is inevitable. We shall therefore be consulting with, and requesting information from, current providers and others involved in order to establish the initial funding arrangements.

Further down the road of implementation the funding of services will result from a process of bidding and negotiation. Under those circumstances it would be proper to treat information on how the payments have been calculated as confidential. It will, however, be possible to make known the criteria by which funding will be proposed and bids judged.

On the national level, there is no change to the current and planned expenditure for the careers service. That is as far as it is possible to go on those matters. Perhaps the noble Baroness will reconsider the position.

Baroness David

I wish to consult some of the local authority associations to find out how satisfied they are with that response. It does not seem an entirely open affair. The issue will not be totally known. The Minister stated that some part of it will be a matter for confidentiality.

Perhaps I may ask a probing question. How far will the funding continue to be available for careers service functions which go beyond the minimum statutory requirements of the new Section 8 of the 1973 Act? For instance, how will adult guidance be funded? That has been part of LEA responsibility until now.

Baroness Denton of Wakefield

I cannot directly answer that question. I shall find the answer and let the noble Baroness have the information.

Baroness David

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stoddart of Swindon moved Amendment No. 257A: Page 55, leave out lines 1 to 5.

The noble Lord said: The intention of the amendment is to remove the power to make charges for services provided under new Section 9. We need an explanation of what the Government have in mind both in relation to services to be charged for, and the level of such charges.

As I understand it, the legislation ensures that the statutory client group will continue to receive free careers guidance. But it will limit such services to those who are still in education or who have just left it. However, statutory provision could be interpreted in a narrow minimalist way which might enable the new providers to charge for any additional services. That could hurt people with special needs. For example, as the noble Lord, Lord Swinfen, mentioned when moving an earlier amendment, there are people with disabilities and learning difficulties. There are also young offenders and other groups needing special treatment. Furthermore, many authorities have developed services for the adult unemployed; and at a time when we have 3 million people unemployed, and rising, it is essential that such services are maintained.

Will the noble Baroness state the exact scale of charges which she is considering? We need the assurance that charging will not reduce the quality or quantity of services available.

The Chairman of Committees

I remind the Committee that if the amendment is agreed to, I shall be unable to call Amendment No. 258.

Midnight

Baroness Denton of Wakefield

So as to avoid misunderstanding, let me make it clear at the outset that the core service, as defined in Section 8 regarding the new duty on the Secretary of State, will remain free of charge.

What we seek to do in the new Section 10(5) is to enable careers service providers to make charges under the powers that my right honourable friend the Secretary of State will have under Section 9. That means that, where it is specified in the arrangements or directions, providers may charge for services other than those provided to the statutory client group.

At present the local authority providers have only a very limited scope for charging of this kind. Many careers services are currently making use of these very limited powers with some success. We want to provide them with greater freedom so that they can develop and extend their services through charging, if there is the demand.

It will, for example, give them greater freedom to develop an all-age guidance service, or perhaps advisory services for employers. It will also ensure that careers services can continue to be fully involved in government proposals for developing guidance services for adults through the gateways to learning and assessment and guidance credits initiatives.

If this amendment were to be adopted, we would be taking away this added flexibility and freedom for providers. It is vital that a comprehensive guidance service is available to all young people at key decision points in their lives—for example, as they first enter the labour market. The Government also recognise that certain other groups—for example, young people leaving school—should have free access to guidance and employment services. The new legislation re-emphasises the delivery of a free service to the core group.

Why should not adults be expected to pay for a service that has the potential to enhance both their job satisfaction and earning potential? The power to charge does not mean that the extensive range of guidance and employment services available to unemployed adults will now be subject to charges. It does not mean that guidance services of the kind currently provided by the local education authorities will come to an end. They are allowed for in the legislation.

This section or the new legislation will enable greater freedom in the area of charging. However, the power to charge does not mean that the extensive range of guidance and employment services available now, in particular to unemployed adults, will be subject to charges.

On the issue of charging, as regards people with disabilities or learning difficulties, those who are in the core client group covered by the current legislation will continue to be there. The core client group will include young people who have ceased to undergo education and who, because of their disability, are experiencing an extended transition to settled employment. The Secretary of State's duty is determined in that instance by individual circumstances.

Baroness Seear

I am sure that the noble Baroness means every word that she says and I am prepared to believe that so long as this Government are in power they will not start charging for services which she says will continue to be free. But as the Bill stands, there is nothing to stop people later introducing charges for the whole range of services. Could not something be written into the Bill to safeguard against that? I am sure that the noble Baroness does not mean that charges should be introduced, but they could be. We would be much more comfortable if there were something in the Bill that made it impossible.

Lord McCarthy

Before the noble Baroness answers that, could she do so the other way round? I tried to write down what she said: not the unemployed, not the disabled, not young people and not a vague group—the "core" group, whatever that is, and other unnamed persons.

Perhaps it would be easier if the noble Baroness could say who will be charged. Who are the people who might be charged? Presumably it will be those who are not part of the core group?

Baroness Denton of Wakefield

I hope that the legislation will give freedom to those providers of the services, free to the groups I have mentioned, to develop marketable services under which people will wish to pay for advice outside those areas where the Government provide the service free of charge.

Baroness Seear

Will the noble Baroness consider between now and the next stage whether there is any way in which we can be reassured that those charges cannot be made? I know about the intention. But the legislation gives no assurance. Can the Government think of a form of words which will satisfy us on that matter?

Baroness Denton of Wakefield

I say to the noble Baroness that I will take away her words and bear them in mind.

Lord Stoddart of Swindon

I am afraid that I am not satisfied with what I have heard. It is too late to put the matter to a vote tonight.

Noble Lords

Why?

Lord Stoddart of Swindon

I think perhaps we had better get on, so I shall not put the Committee to the trouble of a Division. I am not satisfied with whal the noble Baroness said. She reassured the Committee about the statutory client group. That includes the core people who are disabled. But what about people outside the core group? What about the disabled outside the statutory group? I shall have to look very carefully at what the Minister said. I have the impression that disabled people not covered within the statutory arrangements could very well be charged. I hope that that is wrong. I shall have to look at what she said.

The Minister did not answer the question of my noble friend Lord McCarthy. Would it not be easier if the Government told us what groups are likely to be charged, and what services will be charged for? The Government must have something in mind; otherwise they would not have included the provision in the Bill.

Baroness Seear

Not necessarily.

Lord Stoddart of Swindon

We know that the Government do all sorts of quaint things. But they must have the intention to charge certain groups. There is no question that they want to make money. I am sure that we are all suspicious of what the Government are doing. Before we reach Report stage, perhaps the noble Baroness can write to us all and give us an idea. She knows who is here. There are so few of us that she could take our names and send us a letter to say exactly what sort of services she has in mind for charging. That would be helpful.

In withdrawing the amendment, I fear I must say that we shall probably bring it back at Report stage —unless the Minister can give some satisfactory answers in the meantime. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Swinfen moved Amendment No. 258: Page 55, line 5, at end insert: ("(5A) Charges to individuals shall not be made under subsection (5) above, for additional provision arising directly from disability or learning difficulties.").

The noble Lord said: The first part of the Minister's response to the last amendment and the first intervention of the noble Baroness, Lady Seear, show forcefully why it is necessary that this amendment should be incorporated in the Bill.

The purpose of the amendment is to ensure that disabled adults and those with learning difficulties do not have to pay for the additional support or the more specialised careers guidance that they require as a result of their disability. The careers officer may well need to spend more time with disabled people than with others, and training or other placements may take longer to organise because of particular needs. When an individual is still in education he will not be charged for extra time and effort put in by the careers service. But the need for extra assistance does not end when the individual leaves education. That point needs to be emphasised.

As people with disabilities and learning difficulties find it more difficult to gain employment, they may need assistance from careers services for some time after they have ceased to undergo relevant education. They may be more heavily represented among any groups which require the adult guidance that the careers services provide under their powers in the Bill.

If careers services are able to charge clients for provision, many people with disabilities will find as a result that their bills are much higher than those of other clients. For example, they might be charged for the extra hours or additional communication support that they need. People with disabilities and learning difficulties, while often needing more support from careers services, are the group least able to meet the costs of additional services arising as a direct consequence of their disability. It has been proved that disabled people are likely to have less disposable income than the general population.

I do not suggest that disabled people should be exempt from all charges; rather that charges to clients should not be prohibitively high and set at such a level that careers services will be inaccessible to those who most need them. I believe that the cost of additional guidance or support arising directly as a consequence of an individual's learning difficulty or disability should not be passed on to the individual client. I beg to move.

Baroness Darcy (de Knayth)

I should like extremely briefly to support the noble Lord, Lord Swinfen, who has so very comprehensively introduced the amendment. We are just talking about additional provision and disproportionate charging to a group of people who are perhaps most in need of extra help from the careers service and who are perhaps least able to meet the costs of that support.

I hope that I understood the Minister to say in response to the question from the noble Baroness, Lady Seear, that she would look again into the whole issue of charging or explain it. I may have been a little slow and perhaps she will clarify the position when she comes to reply.

Baroness Denton of Wakefield

Perhaps I may say to my noble friend Lord Swinfen and the noble Baroness, Lady Darcy, that we have great recognition of this issue and great concern about it. We shall certainly clarify the situation and perhaps I shall be able to assist at the meeting which I have agreed to hold with my noble friend and other interested parties on this matter. There is no question of people with disabilities or learning difficulties who are in the core client group covered by current legislation being charged for services under the proposed legislation. In addition, new providers, as now, will be able to attract funds from sources other than the Secretary of State and charge him to provide free services for those adults where the need is greatest. The legislation proposes that, with the Secretary of State's agreement, services will be able to charge for guidance services provided to people outside the statutory core client group. There is no evidence that those with disabilities are charged more by current private providers of adult guidance. I can see no reason why those with disabilities and learning difficulties should be charged more.

The Secretary of State will always be in a position to monitor and control charging. If she were to find that those with disabilities and learning difficulties were charged inappropriately, she would have the power through the arrangements or directions that she will make with the providers to rectify such situations. The power to charge does not mean that the extensive range of guidance and employment services available to unemployed adults will now be subject to charges.

I am to have a meeting with my noble friend at which I am sure this will probably be one of the matters that he will wish to discuss. I hope at this stage that he may feel able to withdraw his amendment.

Lord Swinfen

I thank my noble friend for offering to include this matter in the discussions upon which we have already agreed. I gladly accept the offer. However, administrations change, and the intention of this administration may be one thing, but the intention of another may be totally different. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 258A and 258B not moved.]

12.15 a.m.

Baroness David moved Amendment No. 258C: Page 55, line 18, at end insert: (", and () to ensure that a written summary of careers guidance with agreed plans of action in relation to employment, education or training, is provided to all individuals receiving individual guidance from the provider of such services.").

The noble Baroness said: In moving Amendment No. 258C, I shall speak also to Amendment No. 258CA in the name of my noble friend Lord Stoddart. The amendment seeks to ensure that all clients receiving individual careers guidance receive a written agreed summary for further discussion with parents, teachers and so forth, and as a stimulus to agreed further action or self-help.

It is an important entitlement for clients. The wisdom of it was first perceived by the then Conservative Government in 1972. We would all agree that it is easy to forget things. The written summary is not only an invaluable aide memoire to the individual following his or her careers guidance interview, it is also a key tool as an aid to their subsequent discussions with other important people in their lives, be they teachers, employers, partners or parents.

For young people undertaking education, it is obvious that parents have a special interest in their future development. Independent studies have shown the importance of parents in the guidance process. Their influence on their sons' and daughters' future career plans and ultimate decisions is known to be considerable, and parents need written summaries as well as young people. I hope therefore that the amendment can be accepted by the Minister. I beg to move.

Lord Stoddart of Swindon

I support the amendment, which seems to me to be extremely reasonable. The 1973 Act contained the provision, which is repealed by this legislation, and I should have thought that the Government would want to continue it.

What my noble friend Lady David said regarding the necessity for providing such a record is extremely relevant. It is a record which can be kept over a long period of time. It will assist the people receiving advice, and certainly it will assist parents. I therefore support the amendment.

Baroness Denton of Wakefield

I support the thinking behind the amendments, but do not agree that it is a matter that needs to be a statutory responsibility within the legislation.

The legislation is there to provide the overall framework within which the service will operate. Such a level of detail, as indicated by the amendment, is better covered in the guidance of a general character which will be issued setting out the nature of the local careers services, the standards they will be expected to achieve and also in the arrangements the Secretary of State will make with careers service providers.

The intention is to build upon and encourage best practice. The current practice of proving written summaries of guidance is valuable; but they are not necessarily the outcome of offering advice and guidance in every case and on every occasion.

Section 9(3) of the current legislation states that it shall be the duty of the authority to give a written summary of any vocational advice given, but there has not been a commencement order for that part of the legislation. Instead, and much more to be desired, the practice has developed through those providing the careers services realising the benefits for themselves.

We do not want to dictate to providers of careers services every detail of how they should do their job. It is important that those should be developed while recognising their own skills. We believe that the provision of written summaries of guidance and careers action plans is an example of good practice, and the appropriate place for advice about such matters is the Secretary of State's guidance of a general character. In the light of those remarks, I hope that the noble Baroness will find it possible to withdraw the amendment.

Baroness David

I thank the Minister for her reply. I am reminded that the CBI in its Routes for Success published early this month spelt out the critical importance of what it called independent careers guidance leading to an up-to-date action plan based on individual guidance. For that I should have thought that one would need something in writing. I am partially reassured by the Minister but wish to read what has been said before I make up my mind. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 258CA not moved.]

Baroness David moved Amendment No. 258D: Page 55, line 18, at end insert: ("() The Secretary of State shall make arrangements for the inspection of services provided in accordance with this section and shall appoint persons with knowledge and experience in the fields of education, industry, commerce, careers guidance and the local community to a National Council which shall—

1. (a) advise him on the adequacy and the quality of the services provided in accordance with subsections (1) and (2) of this section and on matters relevant to the arrangements or directions under these sub-sections or to guidance given under subsection (6) of this section, and
2. (b) appoint such committees as it considers necessary and may appoint to committees persons who are not members of the Council, and
3. (c) publish an annual report summarising the findings of inspections and the work of the National Council.").

The noble Baroness said: The purpose of this very important amendment is to ensure that independent inspections of the performance of contractors take place and are published, together with an annual report on the national council, and to propose a national mechanism dedicated to securing quality careers guidance. This is the key to quality assurance. It provides a national framework for quality throughout Great Britain. It provides authoritative and independent advice to the Secretary of State on the strategic development and delivery of quality careers guidance and the careers service, and safeguards the interests of the consumer, that is, the clients and customers of careers guidance. In focusing upon standards, receiving all inspection reports, offering strategic leadership and national advice to Ministers and contractors, the council will be a valuable asset to government. National councils elsewhere in Europe are manifestly valuable assets. So, too, are national independent bodies in the United Kingdom, such as the National Council for Vocational Qualifications, the Post Office Users' National Council and OFSTED.

The national council would not include those directly involved in contracting but would comprise senior industrialists, educationists and other community interests, including those with expertise and knowledge of helping clients with learning difficulties and disabilities. The CBI and TUC would have a key input, and the independent professional voice of the Institute of Careers Guidance should also be included.

The call for a national council is supported by an impressive range of organisations and associations with an obvious interest in the process of enabling individuals to maximise their talents, thereby securing the economic success of the country. Sir Bryan Nicholson of the CBI, Sir Christopher Ball of the Royal Society of Arts and the director of the National Institute for Careers Education and Counselling wrote in The Times in late February advocating the establishment of the council. The CBI followed that up only a few weeks ago with a major recommendation in its Routes for Success that a National Council involving Government, Employers, Educationalists and Careers Professionals [should be set up] to establish national standards for careers education and guidance".

Associations representing the combined voices of secondary head teachers, college principals, education officers, local authorities, careers teachers, disability groups and the Institute of Careers Guidance all support the need and value of the national council. I know of no major interest group or national organisation with a concern for quality careers education and guidance that does not support it. I think that the case is made and the argument won. I hope that we can have that reassurance from the Minister.

Lord McCarthy

The case has been made and we support it. If there is one simple thing that the Government can do to reassure the very large number of people who work hard in this difficult field it is to accept the amendment.

Baroness Denton of Wakefield

I have listened to the noble Baroness and I recognise the calls from outside this House to set up by statute a national council to oversee the work of the careers services. I do not want to dismiss this issue lightly as it is a very important matter.

The Government fully endorse and support the intentions of those proposing a national council; we also want to see a better and more effective careers service. But our disagreement with their proposal reflects a lack of clarity on what the role of such a council might be and how it would contribute to that aim. Proponents themselves do not seem clear. Is it to be a consumer watchdog? Is its main purpose to be quality assurance and inspection or is it to be concerned with strategic planning? Perhaps it aims to perform all these functions.

There are already well-established consultative arrangements; at official level there is the Careers Service Consultative Group, which has representatives from a range of organisations. It has proved to be a valuable forum for considering careers service matters. It will continue to operate, no doubt in a modified form to reflect the new arrangements.

The Secretary of State meets regularly with representatives of the Institute of Careers Guidance, the National Association of Careers and Guidance Teachers and the careers service Heads of Service Group. Careers service matters have been and can continue to be considered in a variety of forums, including the National Advisory Committee on the Employment of Disabled People, and by the recently appointed body responsible for overseeing achievement of national education and training targets.

We believe that the existing consultative arrangements modified to reflect the changes we expect to see in the stakeholders and providers of careers services will be sufficient. If they are not, the Secretary of State will be able to establish whatever arrangements are necessary and appropriate without being constrained by the terms of reference of a statutory national council. I note that in the letter to The Times, to which the noble Baroness referred, Sir Christopher Ball, Sir Bryan Nicholson and Mr. Tony Watts were not calling for a statutory national council.

I am pleased to give the assurance that the consultation arrangements for the provision of careers services are something that the Secretary of State will keep under review as the legislation is implemented and she will modify them as necessary. It has been noted, for example, that careers guidance professionals and stakeholders in guidance are now talking together across a broader front than in the past. If such discussions lead to the formation of a body of likeminded experts we would listen to what that group had to say. It is our intention to continue with the annual report on the careers service published by the Department of Employment. I hope that, with those remarks, the noble Baroness will feel able to withdraw her amendment.

Baroness Seear

To put it bluntly, the reason why many of us support the amendment is that we are not happy to leave it to the Secretary of State in consultation with other bodies. I do not want to be offensive about this, but to be frank, we do not trust them to do it. We want another body of high standing which can check them. They are busy checking what the other people do. We want a body that can check what the Secretary of State and advisers do. That is why we want the amendment.

Baroness Denton of Wakefield

I understand the noble Baroness's concern but I do, of course, have great confidence in the Secretary of State.

Baroness Seear

I was referring not to a particular Secretary of State but to Secretaries of State in general.

Baroness Denton of Wakefield

Perhaps I may re-emphasise what I said. If the discussions between careers guidance professionals and those other stakeholders in guidance lead to the formation of a body of likeminded experts, we would obviously listen to them.

Baroness David

I am extremely disappointed with that answer. My noble friend Lady Seear has put her finger on the point. We are not satisfied. We are not sure what these arrangements will be like. There is a great deal that we do not know about them so far. This proposal has had the support of a distinguished group of people, including the CBI and the TUC. I shall certainly come back to this point. If the noble Baroness wants something more specific, I am quite sure that after consultation we shall come back at Report stage with something that satisfies the noble Baroness rather better than this amendment. But come back we certainly shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 259 to 266 not moved.]

12.30 a.m.

Lord Stoddart of Swindon moved Amendment No. 266A Page 56, line 10, at end insert: ("(13) The Secretary of State shall lay before Parliament an annual report on how the duties and powers conferred on him under this section have been carried out in the preceding year".").

The noble Lord said: The object of this amendment is to ensure that, since the Secretary of State is taking over responsibility for careers services, she should be fully accountable to Parliament and provide it with a report as to how she has been administering the service and to what effect. The noble Baroness told us earlier how the Secretary of State was responsible to Parliament and how she would want to ensure that the service was carried out in a way which Parliament would expect of her.

Under the circumstances I believe that the noble Baroness will support this amendment. The kind of report we have in mind would include details of new services introduced, for example, and of services previously provided but discontinued by the Secretary of State, as well as the effectiveness of the total service.

At present there is some democratic accountability through local authorities, but once this Bill is enacted and implemented, there will be no accountability to anyone as far as we can see from the Bill. The Secretary of State will just wave her wand and say "I want this and that" and that will be the end of the matter. There will be no local council or committee. There will be no education authority and nobody at all —not even Parliament—according to the Bill. Therefore, the least we expect is a report from the Secretary of State to Parliament once a year. Surely that is not too much to expect. I look forward to the Government's acceptance of this amendment.

If the service is going to be so good and so much better under the Secretary of State than it is now, surely she will want to say to Parliament "Look at what I have done". She will want to put on record the improvements that she has made. I hope therefore under these circumstances that, without any hesitation at all, she will accept this amendment. I beg to move.

Baroness Denton of Wakefield

The Secretary of State for Employment presents to Parliament, jointly with the Chief Secretary to the Treasury, an annual report which sets out objectives and expenditure plans for the next three years. This already covers the department's work with respect to the careers service and it will continue to do so. In addition to describing the work of the department, the report gives an account of the department's performance in meeting its objectives. I am pleased to hear that the noble Lord, Lord Stoddart, is expecting improvements.

Similar arrangements exist in Scotland and Wales. There are ample opportunities, through the usual channels, open to Members of both Houses to inquire about the work of the careers services and the Secretary of State's duties to secure the services. In addition, it has been the practice of successive Secretaries of State, as I have said, regularly to produce reports on the work of the careers service. I expect that to continue. Such reports can he found in the Libraries of both Houses. The continuation of that practice will, I hope, satisfy the purpose of the noble Lord's amendment. I cannot see that anything of value will be added by imposing a duty on the Secretary of State, and I ask the noble Lord to withdraw his amendment.

Lord Stoddart of Swindon

I shall have to beg leave to withdraw my amendment at this time of night; but I am not really satisfied with that reply. After all, as I have said, this service has been run democratically at local level, responding to local needs. People have been able to see what is happening and to make representation to their local councillors and local authorities; but apparently they will no longer be able to do so.

What I want to see is a special report to Parliament, setting out exactly how the service is being run; how it has improved, or perhaps how it has not been improved; how it has failed; what its failings are and what can be done to put them right; and how the service can be extended to assist all the groups that need to use the service. I should also like Parliament to have the opportunity to debate the report. That is what democracy is all about. Although I fear that the Minister had not given a satisfactory reply, at this time of the night, I shall have to withdraw my amendment. However, I feel sure that we shall want to return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Careers services: ancillary services.]:

Baroness Turner of Camden moved Amendment No. 267: Page 57, leave out lines 12 to 16.

The noble Baroness said: Clause 38 recognises that where a contract to provide the careers service is placed elsewhere than with the local authority, there may well still be services which the careers service would want the authority to provide for it. However, the restriction of such arrangements to two years in subsection (5), which my amendment seeks to delete, makes this only a short-term expedient. It mirrors similar provision in the Education Bill which would limit to two years the power of an LEA to provide goods or services to a grant-maintained school. The restriction is based on a dogmatic view, which appears to be the Government's ideology, that the private sector should and will develop to provide all the necessary services. We are of course familiar with that type of thinking from the Government.

The two-year restriction, which our amendment seeks to remove, seems even more inappropriate in the case of careers services. Careers offices will, in general, share premises with other local authority services. It will often be convenient to the public that services that they wish to visit or contact are to be found at a single and obvious site. Careers services may therefore not wish to have to find new offices simply because of new funding and management arrangements. As a relatively small service in any area, the careers service will need access to a range of support services and professional advice. It may well find it convenient to draw on the local authority for this, particularly in those cases where it may continue to share premises with the authority. It may also want to use the authority's printing and communication systems for contact with schools and pupils. A requirement to cease using the authority for anything after a set period can only add to the administrative burdens on a small service and runs the risk of actually increasing the overhead costs.

I am advised by the Association of Metropolitan Authorities that that restriction would be particularly harmful in the case of a number of partnership-type arrangements since the partnership would effectively be undermined. For example, if a partnership were funded via a TEC so that the LEA was not a direct party to the contract with the Secretary of State, or if the careers service was set up as an arm's length company (with LEA and TEC representation but with its own direct contract with the Secretary of State), subsection (5) would disbar the LEA from supplying goods and services in support of the partnership.

Looking at subsection (5), one cannot help thinking that it is designed to ensure that unless the Secretary of State chooses to contract with an LEA, the LEA will be written out of any real role within two years. Is that the Government's real intention? If so, it should be clearly stated. One would hope that that is not so. Partnership approaches to managing the careers service clearly have some advantages since they create opportunities for the service to draw upon the facilities and expertise that exist in TECs and LEAs. Omitting the subsection would make it clear that forms of partnership where the LEA is not directly involved in the contract with the Secretary of State will not be disadvantaged and that undue constraints will not be put upon the freedom of local careers services to choose the most appropriate source of goods and services. It would also avoid unnecessary administrative complications when LEA services are not easily replaced because of local circumstances.

It surely cannot be the Government's intention to oblige careers services to leave local authority accommodation for possibly more expensive premises, or, if they remain as tenants of the local authority, to oblige them to look outside for expensive services which may be available more cheaply and conveniently within the same building. The provisions of subsection (5), which stipulate a period of only two years during which the authority may provide goods or services, strike me as being particularly absurd unless it is part of a concealed agenda for writing out the role of LEAs altogether and for total and complete privatisation of a service which is most unsuitable for such a course. I beg to move.

Baroness Seear

I support the amendment. Will the noble Baroness give a straight answer? If this is not intended as a sign that the Government want to get rid of local authorities, what is it there for? Is it, or is it not, the intention that there will not be LEAs, if not at the end of two years, then very shortly afterwards? Is there any other conceivable reason why this provision should be in the Bill?

Baroness Denton of Wakefield

Local authorities are restricted in whom they can supply with goods and services. They are limited to providing those services to public bodies and certain defined organisations. Under this legislation for the careers service a wide variety of providers could emerge. These could include local education authorities.

I return to something I said at the beginning of the discussion on Clause 37. If LEAs' services are of the best, then they will continue. It is not the intention of the Bill to write local authorities out of the picture. Providers could also include local authority controlled companies, training and enterprise councils, local enterprise companies, joint ventures between LEAs and TECs (and in Scotland, education authorities and LECs) and other types of private providers.

As the law stands, many future providers of careers services would not be able to be provided with services from a local authority, even for a temporary period. We consider, as do many others, that many new providers will find those services valuable in getting started. By giving local education authorities the power to provide services to future providers of careers services for a transitional period of two years we will give time for careers services and private providers of such goods and services to become established. This is in line, as the noble Baroness noted, with the proposals for grant-maintained schools.

We want providers of careers services to be able to use local authorities' administrative, personnel and computer services for a transitional period to help them get established. Clearly such provision could be of considerable assistance. But the amendment would give LEAs a licence to trade indefinitely with careers service providers. It is not government policy that that should be available because local authorities exist primarily to perform their statutory functions. That is what charge payers and, from April, council tax payers are funding. They are not funding authorities to trade.

The prospect of an authority not being successful in its "trading" activity would entail too great a risk for local taxpayers' money. Moreover, if there were no time limit to the arrangements contained within Clause 38 there would be very little real incentive for private providers of goods and services to enter the market and become established. For those reasons, I ask the noble Baroness to withdraw the amendment.

Baroness Lockwood

Can the Minister explain how that fits in with some of her earlier comments in respect of previous amendments? She talked about the need to establish the best all round, about the need for variety and about it not being appropriate to be restrictive and to tie the hands of the Secretary of State. Surely all those comments apply to this particular amendment and to this particular service. We are not talking about a new service which is being given to local authorities; we are talking about a service which local authorities have had for a considerable time. The Government are making it possible for other competitors to come into the market.

All right, the Minister has won her case this evening simply because of the lateness of the hour and the number of Members present. However, she has not been logical throughout. If we are to have the best, and if there exist joint ventures where the two parties are not applying to be the provider but where they are working in co-operation, the rejection of the amendment will mean that those services which could be of the best will have to be phased out. That is really illogical.

12.45 a.m.

Baroness Denton of Wakefield

Perhaps I may attempt to reassure the noble Baroness, Lady Lockwood, that as regards the service given by the careers service the aim is to provide the best. However, the legislation moves to allow the development of the careers service during the next few years and allows it to have a transitional relationship with the local authority. The key issue of our difference is that it is not, however, the role of the local authorities to trade but to perform their statutory functions. They are not to perform trading functions. I do not believe that that impedes the best services available.

Baroness Turner of Camden

The noble Baroness said that she was seeking to reassure us. I am not at all reassured; quite the contrary. She said that the LEAs are not trading organisations but, on the other hand, they are already providing this service, as pointed out by my noble friend Lady Lockwood. The Government are introducing trading into the whole concept by introducing privatised companies but they are not even giving a reasonable period where services are already being provided by the LEAs. To say in an arbitrary way that there will be a cut off after two years seems to be entirely unsatisfactory.

In common with my noble friends, I realise that I cannot press the amendment to a vote. However, we must look at the matter again on Report because it is so unsatisfactory. To tell us all that we ought to be reassured just because the LEAs are not trading companies and all the rest of it is ludicrous and not at all satisfactory. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 agreed to.

Clause 39 [Employment and training functions of Scottish Enterprise and Highlands and Islands Enterprise]:

Viscount Ullswater moved Amendment No. 267A: Page 57, line 49, at end insert: ("(3B) Where Scottish Enterprise or Highlands and Islands Enterprise make arrangements under this section in pursuance of an authorisation or direction made by the Secretary of State under subsection (3A) (a) above, they shall, at such time as the Secretary of State may require, report to him what provision, if any, they have included in those arrangements in relation to disabled persons.").

The noble Viscount said: The inclusion of this clause in the Bill is to be welcomed. It rectifies an omission in the legislation which provided for the establishment of Scottish Enterprise and Highlands and Islands Enterprise, which are the bodies responsible for the full range of government-funded economic development and training functions in Scotland. At present their powers are broad enough to allow them to operate training but not work experience schemes. This clause provides for them, and through them the local enterprise companies, to cover the same range of training functions which the Secretary of State delegates to training and enterprise councils in England and Wales. As such, it is a technicality. But it is nonetheless important that we remove this anomaly and take steps to ensure that Scottish Enterprise and Highlands and Islands Enterprise are able in future to respond to any new initiative or programme.

This amendment, in itself, will have limited effect; but that is not to say that it is unimportant. The needs of people with disabilities are already well catered for in government programmes; this is a stipulation embodied in the existing legislation governing the powers of the two enterprise bodies. However, should Scottish Enterprise or Highlands and Islands Enterprise make arrangements in accordance with a ministerial requirement under the new subsection (3A) inserted by Clause 39, the amendment provides a discretionary power for the Secretary of State to require the enterprise bodies to report on the provision they make for people with disabilities. This ensures that the needs of people with disabilities will be taken into account in all eventualities.

A commitment was made in another place by my honourable friend the Minister of State to look again at the needs of people with disabilities under this clause. Amendment 267A will serve to ensure that Scottish Enterprise and Highlands and Islands Enterprise continue to keep this issue uppermost in mind in executing any training or employment-related function. I am satisfied that with this addition, Clause 39 completely fulfils all its intentions, and I commend it to the Committee.

Lord McCarthy

We welcome the amendment. Of course the Minister welcomes it. I was going to spend time asking why we do not have in England such excellent bodies as Scottish Enterprise and Highlands and Islands Enterprise, which have such beautiful names. However, it is too late in the evening for that. We welcome the amendment.

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clause 40 agreed to.

[Amendments Nos. 268 to 271 not moved.]

Clause 41 [Miscellaneous and consequential amendments]:

On Question, Whether Clause 41 shall stand part of the Bill?

Baroness Turner of Camden

It may well be wondered why we have indicated our intention to oppose the Question that Clause 41 stand part of the Bill. It is rather complicated and I should like to take a few moments to explain.

It has recently come to my knowledge that the staff in the Palace of Westminster are not covered by the Health and Safety at Work etc. Act 1974. This is occasioning some worry particularly since, as I understand it, increasing numbers of staff here work under contracts held by outside firms, some of which are engaged upon structural work in the Palace. All employees, including clerical and administrative workers, have a right to work in a safe environment, but manual workers engaged on construction work are often rather more at risk.

It is understood that there are some reasons why it is thought it not appropriate that staff working in the Palace of Westminster should be covered by the health and safety at work legislation. It may be a matter of Crown immunity; I am not sure. However, I was sufficiently anxious about the matter to attempt to table an amendment to Schedule 6, the object of which was to extend the employment rights of House of Commons and House of Lords staff by the application to them of the health and safety legislation. The amendment went on to say that nothing in any rule of law or the practice of either or both Houses of Parliament should be taken to disapply the Act in the Palace of Westminster or any buildings or premises owned, leased or occupied by the corporate office of either House of Parliament.

I was advised that my amendment could not be printed on the first Marshalled List because the subject matter was not regarded as relevant to the subject matter of the Bill. I accepted that. I know that we have very experienced Clerks here and I accepted that I could not proceed with that amendment. However, I was anxious to find a way to ventilate the anxiety which I have about the need to extend to the staff who work here for us the cover of health and safety legislation applicable to employees generally. I have done so by giving notice that I intend to oppose the Question that Clause 41, which refers to the schedule that I was seeking to amend, should stand part of the Bill. I believe that notice has already been given to the department of the noble Viscount that I would be doing this. That was the reason why I, along with my two noble friends, had given notice that it was our intention to oppose the Question, That the clause should stand part of the Bill.

I am sure the noble Viscount will tell me that the rights of the staff here will be properly looked after because the Palace of Westminster is a benevolent employer. I do not doubt that that is so, but with respect it is not quite the same as having specific rights laid down in statute to which reference can be made if things go wrong. I know that this is a matter of concern to the staff here and for that reason, despite the lateness of the hour, I felt that I had to make these comments because on Report it is not possible to oppose the Question that the clause shall stand part of the Bill.

Lord Wedderburn of Charlton

Clause 41 also deals with the incorporation of Schedule 7 in the Bill. This may therefore be a convenient moment for me to say why, as I read it, Schedule 7 is unsatisfactory. I have not given the noble Viscount notice of this and I make my remarks with the intention that he may take them away and tell me if I have made an error in this matter. The conditions under which a ballot is required in regard to industrial action in Schedule 7 now differ as between the case where a trade union member can call for it and the case where other persons may sue in a civil action without the ballot because it is unprotected. The relevant references are paragraph 46 of Schedule 7 on pages 94 to 95 and paragraph 73 on page 99. The conditions there differ. If the noble Viscount tells me that I am in error in thinking that there is a difference, we shall not raise the matter on Report, but if my analysis is correct I shall raise the matter on Report.

Baroness Seear

I support what the noble Baroness, Lady Turner of Camden, has proposed. It is not frivolous of me to say, thinking back to what was going on some nine hours ago, that not only are the conditions of the staff working here very much below what could be desired, but the conditions in this Chamber are very much below what could be desired. After the protest we made earlier, I understand that the engineers were telephoned and the result was that the conditions became very much better. If the solution is as easy as that, the conditions never should be as bad as they frequently are. I assure the Minister that I am not the only person who finds the physical conditions in this Chamber almost intolerable on a great many occasions. I beg the Government to reconsider this matter.

Viscount Ullswater

I am sure that the comments of the noble Baroness, Lady Seear, will not fall on deaf ears. Before dealing with the Question of whether the clause shall stand part of the Bill, I should say to the noble Lord, Lord Wedderburn, that I am pleased he has given me notice of the point he wishes to raise with regard to Schedule 7. I have noted the paragraphs he mentioned. I shall consider carefully his comments and make certain that what we intend is correctly drawn in the statute.

As regards the clause stand part debate, the Trade Union Reform and Employment Rights Bill concerns miscellaneous aspects of the relationship between employers and employees, the functioning of their respective associations and unions, and their interaction with each other. It is not about the law regulating physical conditions obtaining at the workplace. The extension of the Health and Safety at Work etc. Act 1974 to House of Commons and House of Lords staff would therefore be outside the scope of this Bill. However, it may help Members of the Committee if I update them on recent discussions between the Health and Safety Executive and the Palace authorities regarding the extension of the Health and Safety at Work etc. Act to the Palace of Westminster. The Palace authorities have agreed in principle to this extension, and this will be dealt with in the next appropriate legislation. In the interim there is no suggestion that standards of health and safety at the Palace of Westminster are inferior to those of other employers. Indeed, HSE already inspects the Palace of Westminster at the invitation of the Palace authorities.

I hope that that reassures the noble Baroness and that she will not press the matter to a vote.

Lord McCarthy

Before the noble Viscount sits down, can he tells us whether the Government plan to do that little thing in their planned legislation in this Session, this Parliament or beyond?

Viscount Ullswater

I am afraid that I cannot be quite as helpful to the noble Lord as he would wish. He must be content with the words that I used—namely, that it will be done when a suitable occasion occurs.

Clause 41 agreed to.

Schedule 6 agreed to.

1 a.m.

Schedule 7 [Consequential amendments]:

Viscount Ullswater moved Amendment No. 271A: Page 89, line 23, after ("60") insert ("or 60A(1)").

The noble Viscount said: I spoke to the amendment with Amendment No. 186A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 272 and 273 not moved.]

Viscount Ullswater moved Amendments Nos. 274 and 275: Page 99, line 19, after ("action)") insert ("; and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person." "). Page 99, line 20, leave out paragraph 72.

The noble Viscount said: Amendments Nos. 274 and 275 form part of a grouping debated with Amendment No. 65. I beg to move.

On Question, amendments agreed to.

[Amendment No. 276 not moved.]

Schedule 7, as amended, agreed to.

Clause 42 agreed to.

Schedule 8 [Transitional provisions and savings]:

[Amendment No. 277 not moved.]

Schedule 8 agreed to.

Clause 43 agreed to.

Schedule 9 [Repeals and revocations]:

Viscount Ullswater moved Amendment No. 277A: Page 107, line 3, column 3, at beginning insert ("Section 11(3) and (7).").

The noble Viscount said: I hope that: this purely technical amendment need not detain us. Its purpose: is to delete subsections (3) and (7) of Section 11 of the Employment Protection (Consolidation) Act 1978. Those provisions no longer have any practical effect as they relate to Section 4(3) of that Act, a subsection which was deleted by an amendment which the Government brought forward at Report stage in another place in response to a point raised by the Opposition during Committee stage debate. The amendment now before us is a purely consequential one which should also have been made at that time but was inadvertently missed. I commend it to the House. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 278: Page 110, line 5, column 3, leave out (" "not protected" ").

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

Clauses 44 and 45 agreed to.

Clause 46 [Northern Ireland]:

Lord Blease moved Amendment No. 279: Page 60, leave out line 8.

The noble Lord said: I hope that I shall not detain the Committee long because it has been a long day and I know that many Members of the Committee are weary.

Clause 31, which was dealt with earlier, relates to the abolition of Part II of the Wages Act 1986, which applies to wages councils in Great Britain. One could argue that that Clause 46(2) (f) has been wrongly drafted as Section 31 of the Wages Act 1986 does not apply to Northern Ireland. Since 1920 there has been a separate body of trade union and industrial law for Northern Ireland as distinct from the body of law for Great Britain.

In moving the Industrial Relations (Northern Ireland) Order 1992, the Northern Ireland spokesman, who was also the Paymaster General, the noble Lord, Lord Belstead, stated on 28th February 1992 at col. 512 of Hansard: As your Lordships will appreciate, the legal and administrative framework for industrial relations in Northern Ireland is separate from that in Great Britain but the legislation has generally followed that in the remainder of the United Kingdom". The main point I seek to make is that the legislation is separate and the administration too is distinctly separate. At this late hour I do not wish to prolong the debate, but there is a long history of acute problems which arise because of the two distinct bodies of laws and the two different administrative systems.

I have a list of examples. One example of the separate legislative framework is the enactment of the Trade Disputes Act 1927. It was enacted in Great Britain and followed through in Northern Ireland. That had nothing to do with strikes, but I give that as an example of how the two systems can vary considerably.

Allowing for the direct route regime, the legislative provisions which are set out at the commencement of Clause 46, I question the constitutional propriety of the inclusion of "section 31" at page 60, line 8, if it does what I assume it intends to do but does not so state: that is, to abolish the wages councils in Northern Ireland. The wages councils in Northern Ireland are enshrined in the Wages (NI) Order 1988. Paragraph 14 of the order states: The Department may at any time by order abolish, or vary the scope of operation of, any wages council. Before making an order under this Article the Department shall have regard to the current levels of remuneration among any workers in relation to whom the wages council concerned would cease to operate, or (as the case may be) begin to operate, as a result of the order, and such other matters as appear to it to be appropriate, and shall consult such persons or organisations as appear to it to be appropriate". That clearly states that there has to be in the legislation a separate and distinct framework of effective consultations with each individual wages council operative.

Nowhere in the Bill do I see reference to the Wages (NI) Order 1988. It is not even quoted in the schedules. In that connection, there has been an exchange of letters between Mr. Carlin, the secretary to the Northern Ireland Committee of the Irish Congress of Trade Unions and the Secretary of State for Northern Ireland, the right honourable Sir Patrick Mayhew, as well as Mr. Robert Atkins, the Northern Ireland Minister for the Economy.

That correspondence is not of a private or confidential nature. It deals with issues relevant to the clause. However, I do not believe that it is feasible, nor would it be helpful, if I were to debate the matters contained in this correspondence at this late hour, after one o'clock in the morning.

I simply wish to quote from one part of a letter from Mr. Atkins which indicates the relevance of my keeping the Committee at such a late hour. He states: While this means there is no consultation period (as with an affirmative order) it does allow MPs"— and I assume Members of your Lordships' House also— to debate the clauses and to seek amendments on the floor of the House. That is a statement from the Minister responsible for economic and industrial affairs in Northern Ireland. It indicates that there have to be effective consultations.

There are 10 listed provisions in the Bill relevant to Northern Ireland and subject to the negative resolution order; there are 19 listed provisions subject to the positive resolution order. I suggest that paragraph (f) should be included in the positive resolution list. Nothing would be lost and I believe much would be gained in the Northern Ireland context if that was undertaken.

I have tried to be as succinct as I can in handling the matter which is serious for the constitution and as the Bill applies to industrial relations in Northern Ireland. Will the Minister reply to the points I have made?

Viscount Ullswater

I am afraid that the amendment tabled by the noble Lord, Lord Blease, is not one which I am able to accept. The negative resolution provisions contained in Clause 46 of the Bill will enable legislation to be introduced for Northern Ireland on the same timescale as in the rest of the United Kingdom.

The proposed amendment would remove the abolition of wages councils from the clause, thereby requiring the affirmative resolution procedure to be used for an order abolishing wages councils in Northern Ireland and so delaying their abolition.

The Government have repeatedly made known their opposition to wages councils which distort the labour market and add to the burdens on business. It would be anomalous to abolish them in Great Britain yet permit them to remain in Northern Ireland for any length of time.

There are no good reasons why the councils should remain in Northern Ireland. Their abolition is as important in Northern Ireland as it is in the rest of the United Kingdom. The question of abolition has been thoroughly debated and voted on a couple of times by Members of the Committee today.

A consultation document seeking views on the abolition of the Northern Ireland wages councils was circulated in Northern Ireland in late 1988 at the same time as consultations were taking place in Great Britain. I believe that the consultation requirements have been acceded to; therefore I ask the noble Lord, Lord Blease, to withdraw his amendment.

Lord Blease

Before the noble Viscount sits down, did I hear him say that the affirmative resolution would be introduced?

Viscount Ullswater

I believe that I said that it was suitable for the negative resolution and that if it were removed from the clause it would have to be done on an affirmative resolution.

Lord McCarthy

I am sorry, I understood the noble Viscount to say that one of the reasons why he could not accede to the request of my noble friend was because to move to an affirmative resolution would cause delay. Is that right? How much delay would it cause?

Viscount Ullswater

As Members of the Committee know, the tabling of an affirmative resolution cannot be done as quickly as with a negative resolution. It demands time in Parliament.

Lord Blease

I am sorry. This is my last point. What is to be gained in any way—from the industrial relations point of view or as regards the position in Northern Ireland—from pushing ahead with this negative order for immediate action to coincide with the situation in Great Britain? My view and that of many people in Northern Ireland is that there is nothing to be gained. On the other hand, much would be gained by waiting until the affirmative resolution was available and a consultation period could take place.

Viscount Ullswater

I cannot agree with the noble Lord. The consultation period is now past. The publication of the Bill provided another period of reflection. The matter has been fully debated in another place and in your Lordships' House. It has been voted on. Possibly the right way to tackle it is to do it simultaneously both in Great Britain and in Northern Ireland.

Lord Blease

I am not happy with the Minister's reply. I beg leave to withdraw the amendment, but on the understanding that I shall raise the matter again at Report stage.

[Amendment, by leave, withdrawn.]

Clause 46 agreed to.

Clause 47 agreed to.

House resumed: Bill reported with amendments.