HL Deb 20 November 1997 vol 583 cc693-720

6.2 p.m.

Report received.

Clause 5 [Legal officers]

Lord Archer of Sandwell moved Amendment No. 1: page 3, line 45, leave out from ("for") to end of line 2 on page 4 and insert ("the words "provide that" onwards substitute "provide—

  1. (a) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done by the person mentioned in subsection (1)(a) alone, and
  2. (b) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done").

The noble and learned Lord said: My Lords, with this amendment it may be convenient to your Lordships if we discuss also Amendments Nos. 2 and 11. In Committee a number of noble Lords expressed concern about the extent of the powers which were to be entrusted to legal officers. I indicated my understanding, and my noble friend Lord Haskel confirmed, that the intention of the Government was to confer on legal officers a limited range of functions in order to relieve chairmen for other work. They would not conduct full tribunal hearings. They would not conduct pre-hearing reviews nor determinations under Clause 2. As I understand it, the kind of tasks which the Government had, and have, in mind, are disposing of cases which are settled or withdrawn; considering applications for postponements; extending time limits; making orders for further and better particulars and dealing with discovery of documents.

As my noble friend explained, the intention is to conduct a pilot scheme and to abstain from concocting a hard and fast list until it is possible to study the outcome of that scheme. However, the Government's intention is not made clear in this Bill and there were those of your Lordships who felt that, if the power was not intended to be widely exercised, it should not be widely taken.

The noble Lord, Lord Lester, has tabled an amendment to confine the jurisdiction to interlocutory orders or decisions on an interlocutory matter. I understand and sympathise with the noble Lord's wish to indicate in the Bill that the powers of legal officers are not intended to be coterminous with those of chairmen. The noble Lord will, of course, speak to his amendment in due course, but it may assist if I explain now what I understand to be the Government's difficulty with it. My noble friend Lord Haskel will correct me if I have misunderstood. I hope, however, that I have understood it correctly because I share the difficulty.

Amendment No. 2 would simply be too restrictive. It is not wholly clear what is "an interlocutory matter", but it is not self-evident that issuing an order to dismiss proceedings where the application has been withdrawn is an interlocutory matter. Similarly, issuing a decision where a settlement has been reached is probably not an interlocutory matter although as far as I am aware it has not been decided. I cannot believe that anyone would wish to exclude those functions. However, I agree with the noble Lord, Lord Lester, that there should be some indication in the Bill that the power to confer functions on legal officers is not intended to be coterminous with the jurisdiction of the chairmen.

I am most grateful to my noble friend Lord Haskel and his officials because they have advised me on this matter, which is not an easy one. I hope that noble Lords will forgive me if I now spend a few moments on the technicalities.

Section 4 of the Industrial Tribunals Act 1996 draws a distinction between a chairman being a tribunal for certain purposes or part of a tribunal, and a chairman acting for a tribunal. Perhaps I may paraphrase. Subsection (1) provides that normally a chairman and two other members, or in certain circumstances one other member, constitute a tribunal. The chairman is a tribunal (even when sitting alone) in the circumstances set out in Section 4(2) and, exercising that jurisdiction, he may conduct a full hearing in the circumstances set out. Under subsection (6) he may be authorised by regulations to act for a tribunal for certain purposes.

By Rule 6 made pursuant to the power conferred by that subsection, he can make orders for discovery and conduct pre-hearing reviews and he can make witness orders. He does that not as the tribunal, but for the tribunal.

The Bill does not seek in any way to amend the provisions of subsections (1) and (2). It is only a chairman who can form part of a tribunal under subsection (1) or who can constitute a tribunal under subsection (2). The Bill will not alter that position. As presently drafted, the Bill states that the person who may be authorised to act for a tribunal under subsection (6)—that is, a person who may deal with certain matters falling short of a full hearing—may be either a chairman or a legal officer. As my noble friend Lord Haskel explained, it was never the intention that the jurisdiction conferred on them under that subsection should be the same for chairmen and legal officers. However, that intention does not appear on the face of the Bill.

My amendment seeks to make it clear that there are intended to be two lists of functions authorised under subsection (6)—one for chairmen and a different one for legal officers. My amendment does not seek to specify what those respective lists should comprise. That is the whole purpose of providing for regulations. However, the amendment seeks to make the position clear.

I take further comfort from what I believe to be the Government's intention—I hope that my noble friend, Lord Haskel, will confirm this—that, before any regulations are drafted, the Government will consult fully with the respective tribunal presidents for England and for Scotland and with the Council on Tribunals and, accordingly, I declare an interest. I should add that the amendment has been discussed with the respective tribunal presidents for England and for Scotland and that my understanding is that they are content. In those circumstances, the noble Lord, Lord Lester, may feel able not to press his amendment, but I await his reaction with interest. I beg to move.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very useful explanation and his sympathy for the object of my amendment. I shall speak to Amendments Nos. 1 and 11 and at the same time to Amendment No. 2 which stands in my name and that of the noble Lord, Lord Renton. When the Bill was in Committee I was one of those who expressed concern about the breadth of the delegated powers conferred by Clause 5 to empower the Department of Trade and Industry to use subordinate legislation to authorise legal officers to exercise any of the judicial powers, so it seemed, conferred on the chairmen of industrial tribunals. This appears to be one issue that escaped the very careful scrutiny of the Delegated Powers Scrutiny Committee which in its report did not comment upon the breadth of the powers contained in the Bill.

As an object lesson it is perhaps worth spending a moment or two on the history of the matter. The Notes on Clauses on Clause 5, as pointed out in Committee, were expressed much more narrowly than Clause 5 itself, being confined to interlocutory matters. Since the Committee stage a number of important letters have been sent to the noble and learned Lord, Lord Archer of Sandwell, myself and no doubt the Government. In one of them, from a Mr. Webster, the secretary to the Association of Industrial Tribunal Chairmen (Scotland), it is explained that nothing in the Green Paper of the previous government or the consultation document indicated that legal officers were intended to have the very broad powers conferred by Clause 5. Similar concern was expressed by the new president of the Industrial Tribunal of England and Wales, Mr. John Prophet, and by the President of the Industrial Tribunals (Scotland), Mrs. Doris Littlejohn. That is the background.

Your Lordships will remember that during Committee stage the noble and learned Lord, Lord Hope of Craighead, the former Lord President, made an important intervention which led me to be content with Clause 5 as it stood. Since then he has very kindly approached me. He asks me to apologise for the fact that owing to a prior engagement in Edinburgh he cannot be present during the debate this evening. But he has asked me to refer to two particular points that he would himself have made this evening had he been able to have been present. I hope that your Lordships will forgive me if I quote his letter rather than paraphrase it. He writes: The first is that there is, in my experience, a critical distinction between orders which relate to interlocutory matters—to matters of incidental procedure—and matters which involve questions of law or questions where the facts may be in dispute. The range of issues which may fall within the description of incidental procedure is very wide and probably incapable of precise definition in primary legislation. That is why I said that it would be unwise to try to define this too precisely in the clause. But if there is the slightest risk that the power which is given by this clause will be used to enable legal officers to decide matters which involve questions of law or questions where the facts may be in dispute, it should be met by a qualification in the clause to prevent the power from being exercised in this way. The second point is that the experience to which I referred at the Committee stage was that when I was a senior judge in charge of a rule-making function which had been delegated to the court itself. It was possible for me in that capacity to exercise a close judicial scrutiny over the detail of the rules which enabled the clerks of court to deal with matters of incidental procedure, in order to ensure that the issues which required a judge's decision were not dealt with in this way. In practice therefore it was left to the judges themselves to decide what matters could safely be delegated. In such a system, with careful handling, the system of delegation had advantages in the saving of time and money. So I was able to support the idea in principle, and—with careful attention to the detail—to achieve results which were acceptable. As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations made under Section 4(6) of the 1996 Act and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified". I do not apologise for reading out that letter because it comes from the highest possible authority with great experience. The question before the House in regard to Amendment No. 1 is whether it deals with the position satisfactorily. I accept that the amendment is a great improvement in that it will ensure that the subordinate legislation will describe the functions to be given respectively to the chairmen and to legal officers.

Furthermore, if the Minister gives an assurance that there will be widespread consultation with the tribunal chairmen, the Council on Tribunals and users of the system, that is to say, advocates, employers and trade unions—representatives of the consumers—that will go a great deal towards meeting the concerns that a number of noble Lords have expressed.

The question then is whether one should seek to go further and fetter the powers by limiting them to the making of interlocutory orders and dealing with interlocutory matters. I have heard what the noble and learned Lord has said about the problem of definition. I am bound to say it is not my experience at the Bar that there is the slightest difficulty under the Rules of the Supreme Court in deciding what is or is not an interlocutory matter. But I appreciate that there may be something encrusted in the legislation which makes it peculiarly awkward for the draftsman to do the necessary surgery and to stitch up after the surgery.

I welcome the first amendment and support it, but I am anxious to hear what the Minister says about the concerns of the noble and learned Lord, Lord Hope, and how to avoid the mischief to which he refers before I make up my mind as to what to do with the amendment standing in my name and that of the noble Lord, Lord Renton.

6.15 p.m.

Lord Renton

My Lords, I have a long-standing engagement some distance from your Lordships' House and I am afraid that I must leave in four minutes' time. I hope that I may be forgiven for making a very brief intervention. I appreciate the immense amount of trouble that the noble and learned Lord, Lord Archer, has taken in tabling Amendment No. 1. I believe that it does no harm but does not do quite enough good. There is an element of uncertainty about it which is something that often troubles Members of your Lordships' House.

This is a revising Chamber for primary legislation but it deprives itself of any authority with regard to making another place or the Government think about secondary legislation. The effectiveness of Amendment No. 1 depends upon the contents of regulations over which we have no influence. I have that doubt about Amendment No. 1.

I believe, however, that Amendment No. 2 is essential. I am very grateful to the noble Lord, Lord Lester, for drawing my attention to it beforehand so that I can add my name. I fully support the amendment because in a direct way it limits the powers to delegate to a legal officer, who may not be a person of great experience or standing, to interlocutory matters. I believe that is reasonable and necessary and I very much hope that, whether we get a full reply or not on these points tonight, the Government will, nevertheless, consider very carefully in the further stages of this Bill the desirability of accepting Amendment No. 2.

Lord McCarthy

My Lords, not for the first time the noble Lord, Lord Renton, helps me when he says that he is more or less satisfied with the amendment of the noble Lord, Lord Lester. I hope the noble Lord, Lord Lester, remains satisfied with his amendment because the noble and learned Lord, Lord Archer, has explained to me his amendment and if he has explained it, it must be clear, but I cannot follow it. I do not think, if I could follow it, that it would help very much because he says that there are going to be two lists. The noble and learned Lord says that they will only put the tasks of the legal officer on the first list, but he does not tell me what will be on the first list and he does not tell me what will be on the second list. He does not tell me whether subsequently he might transfer something from the second list to the first list. So what is the distinction? Therefore, everything could go.

Lord Archer of Sandwell

My Lords, I am sorry if my explanation was not followed by my noble friend. We could probably differ as to where the responsibility for that lies. The whole point about giving power to make regulations is that the regulations can add to or take from a list.

Lord McCarthy

My Lords, that is why we want something on the face of the Bill. That is precisely what it is all about. You are not helping us if you give us two lists and then say that you will fill them in later on and shift things about from one to another as it seems fit. That does not help. The reason why we are worried, of course, as the noble Lord, Lord Lester, said, is because of the Notes on Clauses. Ministers have said from time to time that they would be satisfied with the interlocutory duties, but first Notes on Clauses said that they wanted some interlocutory duties that are currently carried out and then they made a list of the interlocutory duties that would be included. If they had stopped there and told us that that was the list and that they were not going to add to that list, we might have been lulled into a state of satisfaction; but they then went on to say—and I would like the Minister to tell me whether they still say this—in paragraph 4 of the first Notes on Clauses, The amendment to Section 4(6) will enable the rules of procedure to give legal officers the same power as a chairman under the rules. However, the intention is initially to limit their role to the administrative or interlocutory duties which are currently performed by a chairman". In other words, subsequently we may add to these lists. Later, they produced another set of Notes on Clauses and, strangely and subsequently, they took out the word "initially". If I were to read paragraph 4 of the second list one would see that the word "initially" has disappeared.

My question is, do the Government think, as the noble and learned Lord, Lord Archer, thinks, that they can pop things in and out, from one list to another and that they can add new things subsequently which are not there initially? If they think they can, I must say I am surprised.

Baroness Blatch

My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for dealing with the technicalities because I hesitate to intervene in this debate with such learned people around me. Could I confirm that I too would wish to raise the whole issue of the breadth of the delegation, the issue about limiting it to interlocutory and incidental procedural issues, and to express a concern about legal officers dealing with more substantive issues. I think that is a point of concern.

My noble friend Lord Renton, who has now left the Chamber, referred to having a preference for Amendment No. 2. I would wish to say the same. Whether Amendment No. 1 and/or Amendment No. 2 are accepted by the Government, I have no doubt that this is an issue which one would probably want to continue to think about and possibly return to at Third Reading.

When this issue was discussed at the previous stage of the Bill an analogy was made with the clerks of the court in Scotland, and I believe it was fallacious. It is true that clerks do carry out certain routine matters which judges previously carried out. However, they do so in terms of powers delegated to them by the court itself, rather than by virtue of powers vested in them by a Minister of the Crown. The powers delegated to them could be revoked at any time by the court, if there was any concern on the court's part as to the manner in which the powers were being exercised. That could not happen under the Bill, as I understand it, if the tribunal members were concerned about what was going on.

We will continue with this concern but I would like to offer my support to the noble Lord, Lord Lester, on the understanding that I suspect we will need to continue to consider this issue as the Bill moves on to its next stage.

Lord Haskel

My Lords, I am speaking to Amendments Nos. 1, 2 and 11. The Government fully support my noble and learned friend Lord Archer's initiative in tabling Amendments Nos. 1 and 11.

It might help if I remind noble Lords of the Government's policy behind testing the concept of legal officers. If, as my noble and learned friend Lord Archer reminded us, I indicated at Committee that the aim of the legal officer pilot scheme is to test whether it is viable to provide useful support for chairmen, particularly those working in the overstretched major city centres, from a qualified legal officer. It might be possible to release chairmen from some of their interlocutory and preliminary work to leave them free to sit in tribunals hearing cases.

The kinds of tasks which we had in mind for them include disposing of settled or withdrawn cases, granting postponements and extending time limits, making orders for the provision of further and better particulars and making orders requiring the attendance of witnesses or discovery or inspection of documents. However, we shall discuss these with the presidents of the tribunals, who will be closely involved, both in drawing up the pilot experiment and in operating and evaluating it.

As my noble and learned friend Lord Archer has indicated, I can confirm that legal officers will not be empowered to conduct pre-hearing reviews, determinations under the new provisions introduced under Clause 2 of the Bill, or rule 6 determinations. I hope that this will help satisfy one of the points of the noble and learned Lord, Lord Hope.

Since the Committee stage we have given much thought to the issues which have been raised regarding legal officers, and DTI officials have been in consultation with the tribunal presidents on this matter. Given the concerns expressed, that the power taken by the Bill was too wide, we have looked into amending the drafting of the provision. At the request of the presidents of the tribunal we have considered whether it could be made clearer in the primary legislation that, under the regulations, legal officers need not be given the same powers which chairmen will have.

With my noble and learned friend Lord Archer's agreement, the amendment tabled by my noble and learned friend will clarify that those Acts, which the regulations specify, to be exercised by legal officers, need not be the same as those to be exercised by chairmen. Legal officers will be able to exercise only those specific Acts designated in subsequent regulations.

My noble and learned friend Lord Archer asked for assurances and I can confirm that his amendment meets the concerns of the tribunal presidents, and therefore I hope that it will also allay the fear of the noble Lord, Lord Lester.

Turning to the amendment of the noble Lords, Lord Lester and Lord Renton, Amendment No. 2, my noble and learned friend Lord Archer has given a detailed explanation as to why the powers relating to legal officers have been so drafted. He has explained why the amendment tabled by the noble Lord, Lord Lester, would restrict the legal officers' powers too much. As he said, it is difficult satisfactorily to define "interlocutory". There are some acts which we consider would be suitably undertaken by a legal officer, which we think may not fall, strictly speaking, in the category of interlocutory.

I do not intend to repeat the points that the noble Lord has raised. However, I should like to stress to the noble Lord, Lord Lester, that the powers given to legal officers by the regulations will be drafted in full consultation with tribunal presidents. They will also be subject to consultation with the Council on Tribunals, and of course subject to parliamentary scrutiny.

I turn now to another of the concerns of the noble and learned Lord, Lord Hope, which the noble Lord, Lord Lester, read out. I hope that the consultation with the presidents will ensure that the pilot exercises will work satisfactorily in that they will be able to work with the Government in deciding what duties will be appropriate to the legal officer. I hope that the amendment moved by my noble and learned friend Lord Archer, and my further assurances on this matter, will meet the concerns of the noble Lord, Lord Lester, and convince him not to pursue his amendment.

6.30 p.m.

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister, but before he sits down I wonder whether he could clarify just one matter. I think that I heard him say that my amendment would restrict the powers of the DTI too much. Will he explain, with one or two examples, what are the powers which the Government wish to delegate to legal officers, other than in respect of interlocutory matters, that would be hobbled or fettered if the Bill limited delegated powers to interlocutory matters? Could we have one or two examples of the kind of thing that the DTI has in mind which mean that my amendment is too restrictive?

Lord Archer of Sandwell

My Lords, before my noble friend replies, will he say whether he agrees with the two examples that I gave; that is to say, dismissing proceedings where there has been an agreement and dismissing proceedings where there has been a withdrawal?

Lord Lester of Herne Hill

My Lords, before the Minister does that, will he say whether there are any examples other than those obvious examples which might need to be catered for? Are there any examples other than ancillary matters of procedure of that kind?

Lord Haskel

My Lords, I hesitate to interfere in the discussion between my noble and learned friend and the noble Lord. I agree with my noble and learned friend that his examples were relevant. I said that the kind of tasks that we had in mind included disposing of settled or withdrawn cases; granting postponements and extending time limits; making orders for the provision of further and better particulars; and making orders requiring the attendance of witnesses or discovery or inspection of documents.

Lord Lester of Herne Hill

; My Lords, I am grateful to the Minister, but does he agree that all the matters, with the possible exception of the first, are what are known in the trade as interlocutory matters? Therefore my amendment would in no way restrict the DTI's power to authorise legal officers to deal with postponements, adjournments, further and better particulars, discovery, and all the other matters which are in the list in the Notes on Clauses?

Baroness Blatch

My Lords, before the Minister replies perhaps I may say in support of the noble Lord, Lord Lester, that, without some amendment along the lines of the amendment tabled by him, it will be difficult for some of us to accept the Bill as it is, because there needs to be some definition of the framework within which the legal officers will work. We should not leave a gaping void on the face of the Bill which then allows secondary legislation merely to define. It is important to have on the face of the Bill a definition of the degree to which those powers will be used. That is something to which we must return at the next stage of the Bill.

Lord Haskel

My Lords, I agree that it is important, but that is the whole purpose of the test that we have in mind. The purpose of the test is to find out, through experience, what those tasks will be.

Lord Archer of Sandwell

My Lords, with the leave of the House, the difficulty about giving examples in this type of debate is that if you can give examples you can of course frequently deal with them in the primary legislation. Problems arise when you have not thought of the examples and they arise after the legislation is on the statute books. One is then confronted by a practical difficulty. That is why, for reasons with which I sympathise, the Government do not want to set this in concrete at this stage before the pilot schemes.

If I accept what the noble Lord said, that the Scrutiny Committee overlooked this point, then as a member of that committee I must share some of the blame, and I do so. Perhaps we may return to the letter of the noble and learned Lord, Lord Hope. His intervention, if I remember, was in response to an intervention by the noble Lord, Lord Renton, who, unhappily, has had to leave us, in which he appeared to assume that the legal officers would exercise their functions by delegation from chairmen or presidents.

At the time, I must have been more than usually obtuse, because I had not grasped that that was what was in the noble Lord's mind. If I had I would have pointed out that this is a different situation; that legal officers will not exercise their functions by delegation from other members of the judiciary; they will exercise their function under regulations made by the Secretary of State. I am surprised that my noble friend Lord McCarthy thinks that it might be surprising that from time to time regulations are amended. Any power to make regulations will of course include a power to amend them as and when required. That is what it is for.

Lord McCarthy

My Lords, I was not surprised, I was suspicious.

Lord Archer of Sandwell

My Lords, I have tried in the past to allay some of my noble friend's suspicions. I do not propose to embark upon that venture tonight. I should have hoped that my noble friend would appreciate two things: first, the difficulty of framing an amendment of the kind which, understandably, the noble Lord, Lord Lester, wishes to propound, without landing the Secretary of State in a situation where he says, "Ah, now we have seen the pilot scheme, we realise that we should do X and not Y. We should put in a couple of exceptions. We cannot do that, because that is not what the Bill now says". The noble Lord said that everyone knows what is meant by an interlocutory matter. We are dealing with a specialised jurisdiction. We have had examples tonight where some of us have had something in mind, and then, "Oh dear, that is not covered by an interlocutory matter". I hope that the noble Lord and my noble friend will accept that there is a problem here if we try to set this in stone.

The other thing I would have hoped that my noble friend would accept—the noble Lord, Lord Lester, has not said that he does not accept it—is the undertaking given by my noble friend the Minister: first, that there will be the fullest consultation with the presidents before regulations are made; secondly, that the presidents are now content with Amendment No. 1 in the form in which I have propounded it; and, thirdly, they will consult the Council on Tribunals. My noble friend is muttering. I did not quite catch what he said.

Lord McCarthy

My Lords, I said I do not care what the presidents think. I have never met the presidents. I do not think this is good enough.

Lord Archer of Sandwell

My Lords, of course we could take a national referendum if that is what my noble friend wants. There are limits as to what one can do before reaching a decision on this matter. I am sure that the noble Baroness would not ask us to go as far as that.

Baroness Blatch

My Lords, certainly not.

Lord Archer of Sandwell

My Lords, in the light of those undertakings given by my noble friend the Minister, one cannot go very much further to ensure that nothing will be done which has not been disclosed to the House, and nothing will be done that anyone here would regard as improper. In those circumstances, I hope that there will be no opposition to Amendment No. 1. I hope that the noble Lord, Lord Lester, will feel able to reconsider Amendment No. 2.

On Question, amendment agreed to.

Lord Lester of Herne Hill

had given notice of his intention to move Amendment No. 2: Page 4, line 3, at beginning insert ("in respect of interlocutory orders or any other decision on an interlocutory matter,"). The noble Lord said: My Lords, I am grateful for the support from all sides of the House as regards the concerns which underlie Amendment No. 2. I am grateful to the Minister and to the noble and learned Lord, Lord Archer of Sandwell, for doing their best to justify that which I do not believe to be justifiable. The fact that there is to be a pilot study is admirable but it does not meet the point. The pilot study will ascertain whether legal officers of two or three years' call or legal experience are to be entrusted with judicial powers of an interlocutory kind. They will be tested on no more than that because we are told that the department does not contemplate that they will be doing more than exercising interlocutory functions, dealing with compromise cases and the dismissal of cases where there is no controversy. Therefore, the pilot study is completely irrelevant to the issue of what powers beyond the interlocutory and ancillary procedural powers should be given to legal officers.

The fact that there is to be consultation with the presidents and the Council on Tribunals is welcome, but the ultimate question, which is a question for Parliament, especially a question for this House with its weak powers over delegated legislation, is whether we want a safeguard on the face of the Bill to prevent young and inexperienced legal officers undertaking anything other than routine interlocutory and ancillary procedural functions. Since no example has been given either by the Minister or by the noble and learned Lord, Lord Archer of Sandwell, of anything significant that the department wishes to do, the only argument that we have heard is that it will be handy and convenient to keep the reserve power in place in case some further delegation should be necessary—

Lord Archer of Sandwell

My Lords, will the noble Lord forgive me? Does he agree with the noble and learned Lord, Lord Hope, that the kind of expressions we might want to use—for example, "incidental procedures"—are difficult to define?

Lord Lester of Herne Hill

My Lords, I agree that they are difficult to define, but that is the job of government, parliamentary counsel and legal advisers within the department. I hope that after this debate they will bend every sinew to seek to produce adequate definitions which will satisfy the House. Perhaps I may remind the House that the noble and learned Lord, Lord Hope, at the end of his letter, states: As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his Department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations … and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified". I do not believe that it is suitably qualified merely by having two separate lists which, as the noble Lord, Lord McCarthy, pointed out, can simply by amendment be transferred from one list to another. I continue to believe that the Bill must provide some appropriate limitation.

In the absence of the noble Lord, Lord Renton, I would not dream of seeking to test the opinion of the House and I should be proud to stand with him as a Teller. However, I give the Government notice that when the matter comes back on Third Reading, unless we are given something on the face of the Bill it will be my intention to test the opinion of the House. In the meantime, I shall not move the amendment.

[Amendment No.2 not moved.]

6.45 p.m.

Clause 7 [ACAS arbitration scheme]

Lord Wedderburn of Charlton

moved Amendment No. 3: page 6, line 12, at end insert— ("( ) Save as provided by an order made under this section, nothing in this section shall affect the competence of a court to entertain proceedings for judicial review or to refer a question to the European Court of Justice."). The noble Lord said: Perhaps contrary to the view that some of your Lordships have gathered, this is an important Bill which is coming to be seen as important by employers and trade unions. Our amendment is an attempt to face what is an inevitable problem if one creates two different procedures and avenues in law through which one can approach legal remedies for the same matter, as we saw in Committee. The important part of the Bill is that which sets up an ACAS scheme under an order and under the Act whereby those employees who opt for arbitration in agreement with the employer accept the arbitration award by the ACAS arbitrator as binding in place of their rights in industrial tribunals—or employment tribunals, as I shall have to call them after the Bill is passed.

Our amendment puts into clear words the remedy which has sometimes sub silentio been present in debates about the employee who goes to the arbitrator and finds that there is something wrong with the arbitration. I include fundamental mistakes of law, the mistakes which go to a perverse view of the facts in the debate that has been going on for a long time.

Looking at our Committee stage, in so far as one can understand discussion of the amendments from the idiosyncratic groupings, it is clear that it is in line with the debate which has been going on since 1994, the year of the Green Paper of a previous government on the reform of aspects of industrial tribunals, including the parallel course through arbitration instead of opting for industrial tribunals.

I mention the debate because most of it has not been in this House or the other place but in circles such as academic groups which have what might be called an alternative dispute resolution movement in various areas of the law. Many interesting publications have emerged from them. But in this area the department had a particular exchange with two of the leaders in the field—Professors Clark and Lewis of Southampton University—who strongly supported the view taken by ACAS that there should be no appeal on points of law from the arbitrator's award. The rule that there should be no appeal on points of law in the arbitrator's award does not appear in the Bill. It is somewhat strange, because it appears only in an informal memorandum of ACAS. It may be said that the employee accepts that when he agrees to go to arbitration instead of a tribunal. However, it would be useful to have the precise juridical character of that rule spelt out which, reading through the Committee stage, I was surprised to find had not been done.

Professors Lewis and Clark, in the course of arguing with the department that there should be no appeal on points of law, made a most interesting general point. They were asked what they thought should be done with perverse decisions by arbitrators. Of course, we all know that that does not imply any wrongdoing. A perverse decision is one where the arbitrator has got it so wrong as to meet one of Lord Diplock's three areas, to which I shall turn in a moment. But something should be done about it.

It was said, of course, as regards perverse decisions that they could be challenged through the process of judicial review. My noble friend Lady Turner and I took the view that judicial review, in the normal way, was not what we recommended. In your Lordships' Committee, we recommended that the matter should go, on a parallel type of procedure, to the Employment Appeal Tribunal. As I understand the record, that was rejected. It was rejected both by my noble and learned friend Lord Archer and by the Government. Obviously, we accept that. But once that was done the underlying text appeared to be that judicial review would apply subject, perhaps, to some modifications required by this particular subject matter.

Noble Lords will see that we have included in the amendment a power to make amendment by order under the section and we repeat those words. In our view, it is important to state on the face of the Bill the centrality of judicial review as a remedy, where the arbitrator gets it wrong to that degree.

I shall put on record the three areas which Lord Diplock defined in the Council of Civil Service Unions case in 1984, which he called the three areas where judicial review would lie: illegality, irrationality and procedural impropriety. The decision maker must understand correctly the law that regulates his decision-making power and give effect to it and if he does not, that is where the illegality may arise. I shall return to that point in a few moments.

The second point, the type of unreasonableness which is sometimes referred to as Wednesbury unreasonableness in the light of the famous Court of Appeal decision of that name. In Committee we were fortunate enough to find that my noble and learned friend not only knows about Wednesbury but he comes from Wednesbury. We have deep authority for every word he said. I do not disagree with his account and I think that he was agreeing with us that those were the areas of judicial review in modern law.

At that point in this debate, which has gone on now for some three to four years, one must surely say that it would be really rather negligent to leave the record blank and to have the remedy inserted only impliedly. We want to say quite clearly that judicial review is the central remedy. We have included also in our amendment any problem relating to references to the European Court of Justice. Obviously, our law could not create obstacles to such references and so that is really a less interesting part of the amendment.

But what is it that ACAS wants to put into the law? We have heard very little about that. We know that ACAS wants a memorandum, semi-confidential I believe, saying that there should be no appeal on the law. Does that include all the areas of illegality referred to in Lord Diplock's speech in 1984?

A worker who talks to his employer or manager and they agree, "All right, we won't go to the tribunal as that process is rather slow in this area. We will go to an arbitrator and we agree that his decision be the end of the matter". The worker is therefore putting into the hands of the arbitrator a certain area of discretion; but he is not putting into the hands of the arbitrator an unlimited discretion. Any limitations upon the arbitrator's discretion which is narrower than the rules on judicial review would be a most extraordinary type of insertion into a Bill concerned with industrial relations.

There is absolutely no reason at all why working people should be subjected to narrow limits on their rights in this matter with regard to the arbitrators, narrower than the rights that they would have if they went to the tribunals. I am not sure what view my noble and learned friend will take but if the Government try to narrow the rights on "appeal"—and I use the word "appeal" in quotation marks because judicial review is not technically an appeal—on which a further view can be taken of the arbitrator's award, then the scheme is dead in the water before it starts. We shall hear from my noble friends who have experience in that area but I am sure they will agree that no trade union official will agree to take his member to the arbitrator rather than to the tribunal, albeit I accept that in most parts of the country it may be that the arbitration procedure is quicker than taking the matter to a tribunal.

Lord Archer of Sandwell

My Lords, has it occurred to my noble friend that working people and trade unions may actually welcome limiting rights of appeal because they see the advantage of finality?

Lord Wedderburn of Charlton

My Lords, my noble and learned friend must take his evidence where he finds it. My evidence so far indicates that for a very long time most people have been used to having rights of appeal from the tribunals to the EAT and, perhaps he thinks unfortunately, to the Court of Appeal and even to the House of Lords. I am not in favour of appeals for appeals' sake. However, the character of our employment law has within it, and has had within it since 1971, the notion that if you think that the first-tier adjudicator has got it wrong at least you have a right to go somewhere to have it set right. As I understand it, my noble and learned friend is saying that however wrong the arbitrator may be, there is no appeal at all.

My noble and learned friend will have the opportunity to make his case and it may be that that is not what he is saying. But I repeat the central point which must not be lost. If by amendment or by order this system of parallel justice—tribunals and arbitrators—is to cut off appeal at the arbitrator level in such a way that it is in a major sense more limited than the tribunals, then the number of people who use it will be very small and, as word goes round, even fewer people will use it year by year.

That is why my noble friend and I have tabled the amendment. We do that not because we are against the arbitration system but because we believe that it is an important and useful helpmate, as it were, of the tribunals. I have said already that I accept that in some areas tribunals are slow and have a long waiting list; but there cannot be an arbitration system which cuts down rights when there is a parallel procedure which offers rights. People are not that silly. Employers are not that silly. Let us not forget that a very large number of appeals to the EAT is from employers. We shall see what view they take.

I conclude with an example which is extremely recent. The ACAS memorandum first says that because of the non-legalistic nature of many unfair dismissal disputes, legal experience is not considered necessary for an arbitrator. I found that odd because, when we come to the end of the memorandum, paragraph 11 says: Any compensation awarded would be subject to the same limits as tribunal awards. In awarding compensation the arbitrator would have regard to the amount of loss incurred, both actual and future and take into account any monies already paid. The award would be legally enforceable". If the amounts are to be subject to the same limits as tribunal awards, it is very difficult to see how the arbitrator needs no legal experience. I refer noble Lords to the decision of your Lordships' Judicial Committee only a month ago in the case of Tracey v. Crosville Wales [1997] 3 WLR 800 H.L. This has been a complex matter for some years of which the essence is as follows—and I am sure that the Minister will agree that there is some importance in the matter. When workers take industrial action, if they are dealt with by the employer differently in different groups, they may open the door which is usually shut to them for accession to the jurisdiction of the employment tribunal.

It was one of those cases where some strikers were re-engaged and some were not. The difficult question in case law has always been whether, in awarding compensation for those who have been, if you like, victimised, any reduction should be made by reason of the way that they conducted themselves in the industrial dispute. Reductions of compensation are of course a very difficult and important area. Any ACAS arbitrator would have to know his or her stuff on compensation and reductions. In this particular case, the House of Lords decided that no such reduction could be made.

It is difficult to give an impression of the complexity of the case, but I am sure that some noble Lords have some knowledge of it. Indeed, if noble Lords read the speeches, they will realise just what a difficult task an ACAS arbitrator would have to accomplish in order to get the sum precisely right. He or she would have to get the compensation right in global terms, and would then have to get it right according to the rules of law—because those are the rules of the tribunals—as to how much should be deducted, if anything at all. In this case it was not.

I am not suggesting that arbitrators are unable to face such cases; I am saying that the information that we have in front of us does not suggest that the arbitrators who might be appointed will always be able to deal with that kind of case and its legal complexities. I say "always" because this string of procedures, parallel one to the other, is there for the option of the employer and employee who can come to an agreement to take their dispute to the arbitrator.

We have tabled the amendment for that reason; namely, that judicial review is a well-known phenomenon. Small adjustments may be necessary as, for example, are included in the amendment. However, the amendment would not complicate matters. On the contrary, it would facilitate the remedy. The procedures of judicial review are now well-known and that makes it more likely that a system of arbitration would be more free from uncertainties and, indeed, might improve the machinery for remedying unfair dismissal. I beg to move.

7 p.m.

Baroness Turner of Camden

My Lords, I rise to express my support for my noble friend's amendment to which I have attached my name. I believe that I am not alone in feeling a little concerned about a process which, at the end of it, appears to have no right of appeal. I can well understand why my noble and learned friend has sought to introduce a fast-track procedure for dealing with straightforward unfair dismissal cases. The intention is wholly good and he deserves commendation for it.

However, we all know that dismissal is a traumatic experience. Unfortunately, it has happened to far too many people in recent years—people who at one time would have thought that they had "jobs for life"; indeed, people who thought, perhaps, that they would never have to face the trauma of unemployment and who are quite often unprepared to deal with it. Such a dismissed employee could be offered a choice of procedures in the following terms: he could either go down the arbitration route, which is fast track and he will probably not have long to wait to get his case heard. He will not be able to appeal, but he must remember that his employer will not be able to either. Alternatively, he could go to an employment tribunal where he will have the right of appeal right through the court system and even eventually to Europe. However, he will have to wait a long time because there is a backlog of cases and his employer could appeal even if he wins; and it might be quite a long time before he gets any money out of it.

Of course, trade unions may not give that kind of advice, but such advice might come the way of people who are not represented by unions. In such circumstances, the former employee could well choose arbitration. In most cases, that could well be the right decision. But, rarely, there may be a case that starts off looking as though it is simple but which becomes more complex along the way, perhaps introducing some element of gender discrimination or another problem which means that it would have been better dealt with through the ordinary court procedures.

The amendment that we have tabled would provide a fail-safe mechanism, should that happen. It is likely to be rare, but the employee would have the protection of a way out of arbitration and into the court system where that occurs. We have been referred to the Arbitration Act 1996 and specifically, I imagine, to Clauses 68 and 69. However, on reading the clauses, it seems to me that they are quite restrictive. Clause 68 allows for challenging the award where there has been a serious irregularity and that is spelt out in some detail. Clause 69 refers to an appeal on a point of law which could only be brought, as far as I can read, with the agreement of all the other parties to the proceedings, or with the leave of the court.

As I said, those provisions are really rather restrictive. In my view, they were probably meant to deal with commercial disputes and not employment law at all. Such provision is not necessarily suitable for the kind of cases that we are concerned about here, where people are facing the trauma of unemployment following dismissal. I hope that my noble friend, and perhaps the Government, will look with a degree of acceptance on what we are trying to do by way of the amendment.

Lord McCarthy

My Lords, in putting my name to the amendment I wanted to make it clear, as indeed my noble friends have done, that we are trying to improve the Bill. We want to see speedy, informal alternative methods of dispute resolution. We are trying to assist with the Bill, but we also believe that, if we do not modify it in some way, it could, without taking up an exaggerated position, conceivably end up in another Grunwick. Indeed, that could happen. I have come to a conclusion as to the reasons why the Government and ACAS seek to resist what we propose.

If noble Lords will allow me, I should like to speak tonight very much to ACAS. Indeed, some of my best friends are in ACAS. They have employed me since they began. I want to explore how ACAS has thought this out and outline why I believe that it is wrong. We do not want merely speedy, informal alternative systems. I suggest that we must have roughly similar justice. That is what the Government have not thought through.

Why do we have to have roughly similar justice? Why could we not have arbitration with no appeal to law in particular? The arbitration system could proceed in a completely different way, using different criteria, different levels of settlement with different levels of substantive evidence and different results under the law. Why could it not be like that? It seems to me that ACAS is rather hoping that it might be like that because it would be simpler.

I can think of five reasons why it cannot be like that. First, the parties would be watching the system. If, as a result of research or by comparing success rates—because they will get them—or if by bush telegraph or general impressions, it comes to be thought among employers that there is, overall, a significantly higher rate of success and better justice from the workers' point of view, they will not go to arbitration. Similarly, if trade unionists or if the lawyers who advise the non-unionists—they do it very often for nothing—come to the conclusion that you cannot get as much out of arbitrators or that there are certain circumstances and certain cases which do not work, they will not recommend that anybody goes. The system must work and so it must provide not just speed, not just informality, but roughly similar justice. The parties will be watching and comparing.

Secondly, I have been talking now to my friends who are arbitrators. The arbitrators will be watching. They will want to know, roughly speaking, whether they are in line with the law. I ask any of those who might get such a task for not much remuneration: why should you put yourself in the position morally, equably, and in terms of your functions, that you produce very different results from the law? If those people want to know how they can keep in with the law or if they can get roughly similar justice, then they will need a very great deal of information. I am not saying they have to be legally qualified but, by God! they have to know their way about. There are many, many examples of things they have to know about. For example, they have to know all about the different legal principles and applications of cases which tell you how you select people for redundancy. What is unfair selection for redundancy? It is very complicated as to how far you can go and get away with it as an employer. You have to do something about that, and if any question arises of sex discrimination you must detect it because the Government say you have got to take out sex discrimination. It is not simply a matter of knowing about direct discrimination; you have to know how to test for indirect discrimination. That is extremely complicated and difficult.

The difficulty so often in cases of constructive dismissal is to know whether the employer has struck at the root of the contract—whether trust and confidence has been destroyed. That is extraordinarily difficult to detect. It is all right in a tribunal: you have two side members and a qualified chairman. But if arbitrators are afraid that they will not be broadly in line with the principles of the law they are going to have a difficult problem. Most difficult of all perhaps is what I call natural justice denied. Natural justice is not all that important in arbitration. In arbitration you have to decide what you think is the substance of the case. Whether the employer has gone through a reasonable range of responses, whether there has been proper investigation and whether there has been a right to appeal—these do not necessarily concern arbitrators. They want quick, sharp decisions which they think, on the whole, are fair. What is terribly important is that a large number of employers go to tribunals in circumstances where they could have dismissed fairly if they had not neglected one of what they regard as the arcane principles of natural justice. But the poor old arbitrators have to learn them. And there are simple tests. I do not believe that the parties will not be watching and that the arbitrators will not be watching. Therefore I do not think that ACAS cannot be watching. Somehow these poor devils have to be told how to keep in line with the substantive or procedural results of using industrial tribunals.

Also, as the noble Lord, Lord Wedderburn, said, they will have to know what is happening outside and they will have to know whether they are going to lay themselves open to any possibility of judicial review. I frankly do not know how they are going to manage it. There will have to be training. They will have to be kept up to date and that is going to be a difficult and hard task to follow through.

However, turning from the arbitrators and ACAS to the Government and this amendment, I say to the Government with all the force I can muster: we want this Bill; we like this Bill; but it is no good introducing it and thinking you can ignore the need for substantive equivalent justice. If you turn aside, if you think you are going to stop it by law you are going to stop the system itself, because people are watching, arbitrators are watching, ACAS are watching, workers are watching and the Government must watch as well.

7.15 p.m.

Lord Haskel

My Lords, it might be helpful if I explain the intention behind the Government's policy of offering arbitration as an alternative means for parties to resolve their disputes. Certainly, we take the view that it is better if employers and employees can settle their disputes voluntarily, either between themselves or with the assistance of a third party. But underpinning the system is the right of the individual to have recourse to an industrial tribunal. It is inevitable that there will be disputes which cannot be resolved in any other way. We accept that. A complex and difficult case such as my noble friend Lord Wedderburn mentioned could go to a tribunal. It may be suitable for arbitration. We accept that, but we see it as our role to offer parties to a dispute a range of alternative methods by which they might resolve their dispute. As noble Lords know, we wish to encourage parties to use any internal procedures that might be available. A dispute swiftly resolved through an internal procedure can often be to the advantage of all the parties.

We are also committed to the role of conciliation officers in helping people resolve their disputes and, in previous debates, I and other noble Lords have paid tribute to the role that they play.—

Lord Wedderburn of Charlton

My Lords, would my noble friend allow me to interrupt? I wonder if I have got it right. The most important thing he said was that cases of legal complexity of the kind that I cited in regard to compensation recently in the House of Lords—the case of Tracey v. Crosville Wales—may not be suitable for arbitration. However, who would stop the employer and the employee taking them to arbitration if they wished to do so?

Lord Haskel

My Lords, in the Bill there are many safeguards to ensure that employees have full and free advice. We are coming to an amendment which deals with that later. As noble Lords are aware, this Bill adds to the duties of the conciliation officers. It also contains a provision which we are debating for ACAS to prepare and provide an arbitration scheme for claims of unfair dismissal. These are some of the alternatives we wish to make available, and it is important to bear in mind that these are options which the parties enter into voluntarily. No one can be compelled to agree to use them and, as I mentioned, the right to have recourse to a tribunal underpins the system of employment rights. Arbitration is a method of resolving a dispute to which both parties will have agreed, and although they may still disagree about the dismissal itself they will have to agree to submit it to an arbitrator and to be bound by the arbitrator's decision. This agreement is but one of the features which distinguishes arbitration from a tribunal hearing.

My noble friend Lord McCarthy listed some of the points which may not be suitable for arbitration, and there will be others. For example, the arbitration will be private but it will be final. Agreement to be bound by the arbitrator's decision is also one of the reasons why the Government, ACAS and many of those who support an arbitration alternative, both employers and employees, consider the finality of the arbitrator's decision to be an essential part of the scheme. However, the arbitrator's decision can only carry credibility with the parties if they consider that it has been reached impartially and fairly and that they have had a chance for their views to be heard. That is why the Government and ACAS regard the provision of a safety valve to be important.

However, we do not think that we can rely upon judicial review applying to provide this safety valve. Our view is that it is by no means certain that judicial review will apply. Therefore in order to ensure that if there is something wrong, as my noble friend Lord Wedderburn put it, a safety valve will be provided, we propose to apply the provisions of Section 68 of the Arbitration Act 1996 which relates to serious irregularity, subject to discussion with ACAS, and with such modifications as are necessary to make them appropriate to a scheme for resolving an employment rights dispute.

My noble friend Lady Turner said that Section 68 may be more suitable for commercial disputes. The provisions will be modified to make them suitable for the kind of dispute that we are debating. Our difficulty in saying exactly what will apply now is that we do not yet have the scheme. It would be prudent to wait until we have a scheme proposed by ACAS before deciding whether and how the serious irregularity provision needs to be modified. I hope that this will satisfy my noble friend's concern.

My noble friend Lady Turner also spoke of referrals to the European Court of Justice. As I explained in Committee, while the Government wish to restrict the right of appeal on a point of law as much as possible to ensure maximum finality in the arbitration, we recognise that there might be circumstances in which a limited right of appeal on matters of European law may be required under European Community law principles. It may also be necessary to provide a procedure permitting the parties to refer to a court preliminary issues of law for determination.

Noble Lords will recall that the Government have put in observations on two cases before the European Court of Justice where the extent to which arbitral awards should be the subject of appeal on Community law is an issue that is being addressed currently. We are minded to wait until we have the European Court of Justice's decision on those cases before acting on this point.

However, I wish to confirm that once the European Court of Justice rules on the extent to which an appeal or reference needs to be provided in private arbitrations on a point of European Community law, we shall ensure that such arrangements as necessary apply to arbitration under the ACAS scheme. I hope that this will satisfy noble Lords.

Lord Archer of Sandwell

My Lords, I am grateful to my noble friend Lord Wedderburn for confirming at the outset of the debate that this is an important Bill. At least he and I begin in full agreement. My noble friend's amendment reflects concerns which were expressed by a number of noble Lords in Committee. I am grateful to my noble friends for their courtesy in discussing the amendment with me between Committee stage and today.

Perhaps I may spend a moment on the historical background of the problem. When industrial tribunals were first established, it was envisaged that they would have a number of advantages over the more traditional courts. They would be informal, quick, cheap and with proceedings capable of being conducted by litigants in person. Their determinations would quickly be brought to finality. Compared with more traditional courts, that is probably still the case to a substantial extent. But much of their jurisdiction now consists of areas of law where, as my noble friend Lord McCarthy said, the provisions are complicated and technical. That may not be anyone's fault. The world is becoming more complicated. It is not the fault of the tribunals. But it explains why there have been those—I emphasise to my noble friends—largely within the trade union movement who, in relation to certain sectors of their jurisdiction and in particular to claims for wrongful dismissal, have said, "Couldn't we find a method of resolving suitable disputes where the parties agree which seeks to recover those advantages of simplicity, speed and finality?"

Clause 7 of the Bill is an attempt to offer that option, with appropriate safeguards. As my noble friends said, those who wish to retain the full range of options for appeal may simply forget about arbitration and refer their disputes to the tribunal. That was the burden of much of what my noble friend Lord Haskel said. But there are two propositions on which we would all agree. First, for those who are attracted by the idea of speed and finality, it would be pointless to offer the option of going to arbitration and then to deprive that option of speed and finality.

Secondly, I believe we would all agree that there have to be some channels for redress. Those who refer their dispute to arbitration are entitled to complain if the arbitrator departs totally from his terms of reference or embarks on a procedure which is totally eccentric or unfair—the perverse decisions referred to by my noble friend Lord Wedderburn.

In her very fair survey of the options, if she will allow me to say so, my noble friend Lady Turner said that none of us wants to say that there shall be no appeal. I agree with my noble friends Lord Wedderburn and Lord McCarthy that a very good beginning is to make sure that we have good arbitrators. If we can get the decisions right at first instance, it removes many of the problems. But it cannot remove all the problems. There will be occasions where there needs to be redress. I believe that we are now largely agreed that there are two areas where some redress should be provided.

Perhaps we may turn first to issues of European law. As I understand it—my noble friend confirmed the position—the Government's approach is to seek to retain finality as in other issues of law so far as that can be done consistently with our obligations under Community law. At earlier stages in our debates we have tended to speak as though there is an absolute obligation on member states to provide a channel for reference to the European Court in any arbitration procedures. It is by no means certain that that obligation is so wide. European law recognises a right to agree to arbitration, as I understand it, and to restrict the range of appeals. There are at present before the European Court of Justice two cases—my noble friend referred to them—where the extent of the obligation, if any, is being considered. At Committee stage I was asked whether I could indicate those cases. They are Eco Swiss China Time Limited v. Bennetton International, and the Compagnie Maritime Belge case. I can give noble Lords the references if they wish to consult me afterwards.

As my noble friend Lord Haskel made clear in Committee, the United Kingdom Government have submitted observations in those cases. They would like to await the outcome before deciding definitely on the provisions relating to disputes about European law. But it is only honest of me to say that I understand that the Government would be minded to retain finality so far as that is consistent with our obligations as defined by the Court. The importance of finality in arbitration proceedings has been emphasised to the Government by representatives of employers and employees, and, as my noble friend Lord McCarthy said, very emphatically by ACAS. We know that there are two sides to the argument; but there are advantages in finality.

I turn to issues other than those of European law. There is a wide consensus that we should not admit appeals on every issue of law which arises. But we all agree that serious procedural matters should have a form of redress and that it should go rather wider. The question is how best to achieve it. My noble friends suggest judicial review. I know from many conversations I have had in the past with my noble friend Lord Wedderburn that judicial review is not his first choice. For myself, I should prefer not to leave redress to judicial review. If I have misrepresented my noble friend, I apologise.

7.30 p.m.

Lord Wedderburn of Charlton

My Lords, my noble and learned friend will remember that the noble Baroness and myself moved amendments in Committee which did not rely on the normal judicial review, but on a special structure for the EAT. I am sure that he could not forget that.

Lord Archer of Sandwell

Indeed, my Lords, quite the reverse. I am grateful to my noble friend for confirming precisely what I said: it was not his first choice. It would not be my first choice either. It is a very useful remedy which the courts have developed over the past few years, but it tends to be a remedy for situations where no other redress has been provided. It follows that it tends to be attended with uncertainty and unpredictability. It is better, when we foresee the need for redress, to provide it specifically. Then it can be tailor-made to the needs of the parties. In any event, for what it is worth, I endorse the remarks of my noble friend Lord Haskel, that it is by no means certain how judicial review can be made to apply to what will be in effect a private agreement between the parties to the arbitration.

However that may be, the Government's view, as I understand it, is that it will be difficult to formulate appeal provisions until we have the scheme. For that reason, they are reluctant to incorporate specific appeal provisions in the Bill. As my noble friend said, my noble friend Lady Turner had foreseen the difficulty, and what they have in mind is using Section 68 of the Arbitration Act 1996.

I appreciate my noble friend's view that that Act is designed primarily to apply to commercial arbitrations, and not all of its provisions are suitable for industrial disputes. Of course they are not; we are all in agreement about that. But it does not follow that the entire Act is totally unhelpful and unusable.

Section 68 states: A party to arbitral proceedings may … apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award". That provision is fairly wide.

Subsection (2)—which I certainly do not intend to impose on your Lordships at this hour of the evening—sets out a list, (a) to (i), of possible examples of material irregularity. My noble friend Lady Turner says that that is too restrictive. All my noble friends are rather indicating that.

Lord Wedderburn of Charlton

My Lords, will my noble and learned friend read the final paragraph of subsection (3)?

Lord Archer of Sandwell

My Lords, if my noble friend wishes me to read it out, then of course I will. I think that there are those who are rather anxious about the time. Subsection (3) states: On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction", and then states what the court may order. It may, confirm the award … vary the award, or … set aside the award".

Lord Wedderburn of Charlton

Over the page—

Lord Archer of Sandwell

My Lords, it is all on the same page. I am trying to be helpful.

Lord Wedderburn of Charlton: I

I am sorry to—

Baroness Blatch

My Lords, while there is a private altercation going on between the two noble Lords, I wonder whether I might intervene. We have been debating the Bill for over an hour and a half and are only on the second grouping. I do not in any way wish to detract from the importance of the Bill or of the amendments under discussion. However, I wonder whether I might appeal to those present from the usual channels, given that people have travelled a very long way specifically to be here for the other debate, which was expected to take place much earlier this evening. At the end of this amendment, which I suspect still has a good half an hour or more to run, is it possible that the House might adjourn long enough for the other debate to take place, and then this Bill could continue? I suspect that, taking the first three amendments as a guide, we shall be here for a very long time on the remainder.

Lord Archer of Sandwell

My Lords, I fully take the noble Baroness's point. The next debate is one in which I personally have an interest, although I do not propose to participate. I have been mindful of the time factor. I do not think that it has been entirely within the control of any of us. I can set the noble Baroness's mind at rest. This is the last debate on the Bill which is likely to take up very much of the time of the House. The noble Lord, Lord Meston, can assist us. He is the only other noble Lord who is likely to know how much time the rest of the Bill will take. I suspect that it will be very quick indeed.

Lord Meston

My Lords, since the noble and learned Lord asks me, I am painfully conscious of the time and of the inconvenience caused to others who are waiting to take part in the next debate. For my part, I shall not move my amendment, even if it causes me some difficulty in bringing it back at Third Reading.

Lord Archer of Sandwell

My Lords, I am most grateful to the noble Lord. I hope that that sets the noble Baroness's mind at rest. The other amendments are mine, and I propose to be extremely brief.

Baroness Blatch

My Lords, I am sure that that will come as an enormous relief to all those around the Chamber. I apologise for my intervention. However, given the concern that I see expressed on the faces of at least three noble Lords, this particular amendment will run for a good deal of time yet.

Lord Archer of Sandwell

My Lords, I do not believe that it will. However, may we see how matters go? I suspect that we are coming fairly close to the end of the debate.

The section that my noble friend Lord Wedderburn wishes me to read out is from subsection (4), not subsection (3)—

Lord Carter

My Lords, time might be saved if my noble friends realise that they cannot speak after the noble and learned Lord, Lord Archer—except for the noble Lord, Lord Wedderburn, who I hope will be brief so that we can get on with the Bill. I do not believe that we are able to adjourn the Bill and return to it afterwards. I am sure that my noble friends understand the situation. If we could now proceed in reasonable time, I am sure that that is the wish of the House.

Lord Archer of Sandwell

My Lords, I am grateful to my noble friend. We should be very insensitive had we not grasped the time factor.

My noble friend is asking me to read out, not subsection (3), but subsection (4): The leave of the court is required for any appeal from a decision of the court under this section". He is absolutely right. That is precisely what it says. I am sure that he can put the matter right later.

Some of these provisions may need tailoring to the scheme that finally emerges, as my noble friend Lord Haskel said. We probably all agree that it would be unwise to apply the provision in toto, with no adjustments. That is why I hope that my noble friend will be content in the light of those assurances to leave the Bill unamended and to leave the Secretary of State to deal with the matter in the way I suggested.

Lord Wedderburn of Charlton

My Lords, I shall be very brief in replying to a somewhat complicated debate. First, on the European Court of Justice, I thought I said in moving the amendment that we have no difficulty about delay on that matter and the noble Lord the Minister made it clear why there should be some delay.

However, to say that judicial review is not suited to these matters because they are private agreements, with great respect, misses the whole point. We are not setting out merely a scheme of private agreements. We are setting up a statute based system of consensual arbitration. Where there is a statutory base, the courts do intervene, and often have intervened by way of judicial review. With great respect to him, the Minister has to verge on being wrong, or indeed come closer than that. when he says that judicial review is not suitable. 1 can see that the provision may need some amendment; but it is much better to start with that than with the Arbitration Act 1996.

I have some knowledge of that statute. and of the three sets of discussions under the noble and learned Lords, Lords Saville, Steyn and Mustill, that preceded it. Anyone who thinks that Section 68, or indeed any other section, can be made into a suitable base for what my noble friend Lord McCarthy called parallel justice, is crying for the moon. There is one clear indication that that is so; namely, no one since 1994 has suggested anything of that sort to deal with the problem. It has arisen at the last minute in your Lordships' discussions. I hope that the Government will go away, re-examine the provision and see how judicial review could be a method—unless we are to go back, which I am not allowed to do, to the system we suggested, using the EAT as an appellate body; because then the two streams of jurisdiction would, as it were, merge in the EAT and the employment appeal tribunal could give judgments which brought the two streams together—those of the arbitrators and those of the tribunals. Nothing could be simpler than to draft regulations for that.

However, I can see that the Government are obdurate, and no doubt they will not come back on Third Reading with anything other than the Arbitration Act, modified as they want. We look forward to that and all I can do with this amendment is beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 13 [Internal appeal procedures and unfair dismissal awards]:

[Amendment No. 4 not moved.]

Clause 14 [Acts which are both unfair dismissal and disability discrimination]:

Lord Archer of Sandwell moved Amendment No. 5: page 11, line 18, leave out ("Section 126 of the Employment Rights Act 1996") and insert ("In section 117(6) of the Employment Rights Act 1996 (which provides for a higher additional award for an unfairly dismissed employee who is not reinstated or re-engaged as ordered in a case where the dismissal is sex or race discrimination), at the end insert "and (c) a dismissal which is an act of discrimination within the meaning of the Disability Discrimination Act 1995 which is unlawful by virtue of that Act." ( ) Section 126 of that Act").

The noble and learned Lord said: My Lords, with this amendment it may be convenient to take Amendment No. 12. I can move it briefly. The purpose is to correct an oversight in the Disability Discrimination Act 1995 and to place discrimination on grounds of disability in parallel with discrimination on sexual or racial grounds. I beg to move.

Lord Haskel

My Lords, the Government fully support this technical amendment which will ensure that those employees who have been discriminated against on the grounds of their disability will be treated in the same way as those who are discriminated against on the grounds of sex or race.

On Question, amendment agreed to.

Clause 17 [Commencement]

Lord Archer of Sandwell moved Amendment No. 6: page 12, line 14, leave out ("17") and insert ("17(2)").

The noble and learned Lord said: My Lords, with this amendment it may be convenient to take Amendments Nos. 7 and 8. I believe that I can abbreviate what I was proposing to say in this way. There was an oversight following from an amendment moved in Committee in relation to the jurisdiction of the employment appeal tribunal. We also seized the opportunity to correct what was previously an oversight in legislation. The amendments are in order to tidy the jurisdiction of the employment appeal tribunal. I beg to move.

Lord Haskel

My Lords, the Government fully support the initiative of my noble and learned friend Lord Archer in tabling these amendments. Although they are minor and technical, they will ensure that the complete jurisdiction of the EAT is accurately described in the legislation by including the original jurisdictions along with appeals. They will make it expressly clear that jurisdictions other than appeals can be conferred on the EAT by other legislation.

Lord Archer of Sandwell

My Lords, before my noble friend sits down, both he and I, in our haste to conclude the proceedings, have overlooked one matter. The jurisdiction in Scotland is slightly different from the jurisdiction in England and we propose to rectify it by an amendment at Third Reading.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendments Nos. 7 and 8: page 12, line 20, leave out ("17") and insert ("17(2)"). page 12, line 21, at end insert— ("( ) If an appeal of the sort which lie to the Employment Appeal Tribunal by virtue of the provision made by paragraph 17(2) of Schedule I has been brought before the High Court or the Court of Session not later than the day on which this Act is passed, the appeal may nevertheless be brought before the Employment Appeal Tribunal within the period of 42 days beginning with that day or such longer period as that Tribunal may by order specify.").

On Question, amendments agreed to.

Schedule 1 [Minor and consequential amendments]

Lord Archer of Sandwell moved Amendments Nos. 9 and 10: page 18, line 13, leave out ("In section 21(1) of that Act") and insert—

("(l) Section 21 of that Act (jurisdiction of the Employment Appeal Tribunal) is amended as follows. (2) In subsection (1)"). page 18, line 15, at end insert— ("( ) After subsection (3) insert— "(4) The Appeal Tribunal also has any jurisdiction in respect of matters other than appeals which is conferred on it by or under—
  1. (a) the Trade Union and Labour Relations (Consolidation) Act 1992,
  2. (b) this Act, or
  3. (c) any other Act."").

On Question, amendments agreed to.

Schedule 2 [Repeals]

Lord Archer of Sandwellmoved Amendment No. 11: page 20, leave out lines 14 to 16.

The noble and learned Lord said: My Lords, I beg to move.

Baroness Blatch

My Lords, I wonder whether the noble and learned Lord, Lord Archer, could now reverse my previous advice? We are trying to find the noble Lord, Lord Lester, who thought it would be a long time before he was called. If the noble and learned Lord would care to elaborate a little on Amendment No. 11, long enough for the noble Lord, Lord Lester, to appear in the Chamber, we should be grateful.

Lord Archer of Sandwell

My Lords, I am always willing to assist in these matters and I am grateful to the noble Baroness. However, I see that the noble Lord, Lord Lester, is present and our problem is solved. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 12: page 20, line 22, column 3, leave out ("117(8)") and insert ("117, in subsection (6)(a), the word "and" and, in subsection (8),").

On Question, amendment agreed to.