§ 4.27 p m
§ Lord Archer of Sandwell
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Archer of Sandwell.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.635
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Determinations without a hearing or full hearing]:
Baroness Turner of Camden moved Amendment No. 1:
Page 2, line 9, leave out ("given their written consent") and insert ("consented in an agreement in writing after receiving adequate independent advice within the meaning of section 9 of the Employment Rights (Dispute Resolution) Act 1998.").
§ The noble Baroness said: In moving the amendment I wish, with the leave of the Committee, to speak also to Amendments Nos. 3 and 4, with which Amendment No. 1 has been grouped, and to restate some of the points I made when the Bill was debated at Second Reading.
§ I commend my noble and learned friend for bringing forward the Bill. It is a genuine attempt to make things easier, and in particular faster, for employees who have suffered the trauma of job loss. The present situation is unsatisfactory. There are queues for cases to be heard and the workload of industrial tribunals—now to be known as employment tribunals—has increased. It can mean that a lengthy period will elapse before a dismissed employee succeeds in getting satisfaction.
Clause 2(3A) specifies that employment tribunal regulations may authorise the determination of proceedings without any hearing (and in private) where the parties have given their written consent. My amendment seeks to provide that instead of "given their written consent" should be the words,
consented in an agreement in writing after receiving independent advice within the meaning of section 9 of the Employment Rights (Dispute Resolution) Act 1998".
§ I believe that the point made in the amendment is clear, and I hope that it is acceptable. It is not simply enough that the dismissed employee—I am thinking particularly of the dismissed employee rather than of the employer because the employer is more likely to have advice readily available—should not give up what might be important rights, such as the right to a day in court and to a hearing, without understanding precisely what is involved. It has to be understood—I am sure that it is understood by the sponsors of the Bill—that the dismissed employee is often in a shaken state. In the past few years unemployment has begun to affect industries and undertakings where it was once thought that employment was secure. As we all know, that is no longer the case. A substantial amount of money could be involved in the case of a long-serving employee—at least, it would be a substantial amount in the eyes of the employee. It is therefore crucial that the right to a full hearing should not lightly be surrendered and that the employee should have advice before that right is given up.
§ I turn now to Amendment No. 3. The Bill continues with provisions on determinations without a full hearing. It allows for that to occur where an employment tribunal is, on undisputed facts, bound by the decision of a court in another case to dismiss the case of the person or persons by whom or against whom the 636 proceedings are brought. My amendment seeks to remove that provision from the Bill. I believe that the issue of when the legal outcome of undisputed facts is binding is very difficult. Employment tribunal decisions are constantly being reversed by the EAT when it thinks that the legal outcome is obvious or where it is bound by some higher court. What happens if, after a decision under this clause, the European Court of Justice, for example, gives a different interpretation of the law? I should appreciate hearing something on that point from my noble and learned friend who is sponsoring the Bill.
§ Amendment No. 4 seeks to set out a preliminary issue which is important and basic. Under the terms of the Bill, a preliminary issue can be dealt with without a full hearing, but the question of whether a complainant is a "worker" within the meaning of the provisions is important. It would not be right to determine the issue of whether an individual is a "worker" (although it is a preliminary issue) without the full facts going before a tribunal.
§ I regard the right of a dismissed employee to a full hearing as of great importance. It should not lightly be surrendered. The number of cases likely to be suitable for determination without a full hearing will probably be small, but we want to ensure that such important rights are safeguarded. Nowadays there are many variants of the employer/employee relationship. The growth in contract working may give rise to complex issues. Is the person concerned an employer, self-employed or an employee? This matter can be complex and needs to be thoroughly examined. A determination without a full hearing may not be appropriate in such circumstances. I beg to move.
§ Lord Campbell of Alloway
I should like briefly to support Amendment No. 4, but to oppose Amendments Nos. l and 3. I support Amendment No. 4 for the reasons given in substance by the noble Baroness, Lady Turner of Camden. However, I am a little puzzled on Amendment No. 1. The drafting of the clause surely assumes that the consent may be subsequently withdrawn. If there is any problem about the circumstances of giving the consent, it is assumed that the consent may be withdrawn. Therefore, I cannot appreciate the reason for the complexity of the provisions of the proposed amendment.
Amendment No. 3 seeks to leave out lines 27 to 30. Surely the removal of those words could well inhibit due administration and would stop the tribunal from getting on with its work. Such tribunals will have many cases to deal with. At the moment I cannot see any real justification for the amendment.
§ Lord Lester of Herne Hill
I support the amendments and shall seek briefly to explain why. The Bill deals with employment rights. Some of those rights are basic civil and political rights, such as the right to equal treatment in employment without arbitrary discrimination on various grounds. There is no legal aid for what will become employment tribunals and under the provisions of this Bill the employee will be surrendering his or her right to a full judicial hearing. If 637 that is done without cast-iron guarantees that the employee knows what he or she is doing and if a determination is made without a full hearing, there is a serious risk of a denial of due process of law or, to put it in European terms, of a breach of Article 6 of the European Convention on Human Rights which provides that in the determination of his or her civil rights and obligations everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. I do not oppose the purpose of the Bill, but what is happening here is that in lieu of that basic right (which is guaranteed by Article 6 of the convention and which is soon to be guaranteed by our domestic law when we incorporate the convention into UK law), there will be a system which will deprive the applicant of those basic rights.
It is therefore extremely important either that these amendments are accepted or that we have guarantees in lieu of them to ensure that there is no denial of due process in the determination of civil rights and obligations. I am encouraged by the fact that the noble Lord, Lord Campbell of Alloway, shares those same concerns about fairness and due process. Indeed, I am sure that they are shared by noble Lords on all sides of the Committee. It would be a strange irony if this Government, who are committed to protecting human rights under the rule of law, were to whittle away those rights in respect of some of the most vulnerable members of our society. I therefore support the amendments.
§ Lord Archer of Sandwell
I thank my noble friend Lady Turner of Camden for her kind commendation of the Bill. Clause 2 confers on the Secretary of State the power to make regulations authorising the tribunal in certain circumstances to determine the process without a hearing or without a full hearing. As my noble friend said, one proposal is that that may be done where the parties have consented in writing. Amendment No. 1 would provide that that consent would be effective only if each party had first received adequate legal advice.
I say at once that we discussed this on Second Reading and that my initial reaction to those provisions was exactly the same as that of those noble Lords who have spoken today. Noble Lords will recall that at Second Reading I said that that had also been the reaction of the Council on Tribunals which I have the privilege to chair. Accordingly, I repeat the declaration of interest which I made then. I said that I had been persuaded otherwise for two reasons. First, I believe that we should be cautious about compelling someone to take advice on pain of being deprived of an option that that person has said he or she wishes to exercise. Surely, one human right is the right not to take advice if one does not wish. I would not go to the stake for the absolute application of that principle. Something turns on the nature of the decision to be made. When one comes to Clauses 7 and 8 and the option to submit a dispute to arbitration, the advantages and disadvantages of taking that course are not obvious to everyone without explanation. As to that, I take a different view.
638 In relation to the decision that we are now discussing. I believe that the matter is fairly simple. As a general principle I believe that a person should not be compelled to take advice and that should overrule the other considerations. That is perhaps a theoretical objection. But there is a much more severely practical reason why I took the view that I did. The effect of insisting that a party takes advice before the choice is effective is that if the individual has not done so the consent is invalidated, and anything then done pursuant to it is similarly invalidated. If it emerges subsequently that advice has not been taken, the whole determination will be invalid. That means that the tribunal cannot safely proceed without ensuring that proper advice is taken, and the other party cannot be sure of his or her position without similarly ensuring.
But the whole purpose of the proposal is to permit a disposal without a hearing, or without a full hearing. If a party does not want a hearing, presumably he or she will not wish to attend; yet someone will now have to ask that person what advice he or she has taken, who has given the advice, what qualifications the person has and what that advice is. That would defeat the whole purpose of the Clause 2 procedure and mean more preparatory work than the time which would be saved by the procedure.
My noble friend seeks to provide that the advice should be adequate. I understand why. There is no point in taking advice unless it is adequate. But the tribunal and the other party will therefore have to inquire into the adequacy of the advice before they proceed. Of course, the tribunal may now determine proceedings in the absence of a party and there is no requirement that a party should take advice before deciding whether or not to attend the proceedings. The provisions of Clause 2 simply spare the tribunal from arranging a public hearing. It would be very strange, would it not, if a party did not need advice for absenting himself altogether and yet could not consent to a partial hearing or a hearing on papers without taking advice?
Following what I said at Second Reading, the Council on Tribunals has considered the matter and has been persuaded to take the view that I now take. For those reasons, I hope that my noble friend will not press her amendment. But that does not mean that I do not consider advice to be highly desirable. I agree with all noble Lords who have spoken. When my noble friend Lord Haskel speaks I hope that he will give an undertaking that the Government will do everything in their power to make advice available and encourage parties to seek it. When a letter goes out to the parties from the tribunal one possibility is that that should contain information about advice that is available and strongly encourage the parties to take it, but it seems to me that to require it as a condition of the validity of proceedings defeats the whole purpose of the provisions of Clause 2.
In relation to the comments of the noble Lord, Lord Campbell, consent once given cannot be withdrawn. That is part of the provision in the Bill, and it is quite deliberate. If it were possible for a party to give consent to a particular form of proceeding and, when it was well under way, to say that he had thought 639 about it again, or had had a dream about it the previous night, and wanted to withdraw it, the burden upon the tribunal would be added to and it would not serve the purpose of this Bill, which is to lighten the burden.
I turn to Amendments Nos. 3 and 4. I observe that the groupings with which noble Lords have been presented can be described only as eccentric. I made some suggestions about them. Those suggestions were ignored. It is not the first time in my life that my advice has been rejected, and I do not suppose for a moment that it will be the last. However, I should like to make clear that it is not my fault. Therefore, we are discussing topics that do not really belong together.
Before I address my noble friend's amendments, perhaps I may spend a moment clarifying the provision that she seeks to amend. The provision is an enabling provision that empowers the Secretary of State to make regulations. The regulations may authorise a tribunal in certain circumstances to determine proceedings not without a hearing but without hearing anyone other than the parties. That may provide an answer to the point raised by the noble Lord, Lord Lester. The parties are entitled to attend and they can make any submissions that they see fit.
In what circumstances may that procedure be authorised? The answer falls into two parts: first, where the facts are not disputed. If it appears at the outset that there is a dispute on the facts, or if a dispute of fact emerges during the proceedings, this provision does not apply. For the moment I am addressing only Amendment No. 3. Secondly, it applies only if upon those facts the tribunal is bound by the decision of a superior court to decide the case one way. The question that arises is: what purpose is to be served by calling witnesses? The purpose of Clause 2 is to protect the tribunal from having to hear proceedings that cannot serve any purpose. In the circumstances set out it appears that a full hearing with witnesses cannot serve any purpose.
I turn to Amendment No. 4. If an individual does not have the right to bring a complaint, the tribunal has no jurisdiction to hear the case. One would have thought it sensible to sort out as swiftly as possible at the outset the question whether or not the tribunal had jurisdiction without the need to hold a full hearing with the parties and witnesses being present. To require a full hearing in all those cases will simply slow down the hearing of cases, which is the very purpose that we all seek to address in these debates. There must be many cases where a full hearing is unnecessary, a waste of time and resources and simply holds up adjudication on other people's rights. I hope that on reflection my noble friend will think again about these amendments. I seek to give her the opportunity so to do.
§ 4.45 p.m.
§ Lord Lester of Herne Hill
Before the noble and learned Lord sits down, perhaps I may seek to clarify one point. I entirely accept everything he has said about the parts of the Bill that exclude only third parties from hearings and not the parties themselves. As far as 640 concerns the exclusion of jurisdiction by consent, is the noble and learned Lord not troubled that, given the complexity of some of the issues that arise, without legal aid and a guarantee of proper legal advice, a person may surrender his or her right to a full hearing before the tribunal as a party without understanding the implications of what he or she is doing? It will become irrevocable. Then we shall find ourselves with problems of breaches of Article 6 of the convention. There was a case called Mrs. Airey v. Ireland. She could not obtain legal aid for her separation in Ireland and the court there found that that was a breach of Article 6 of the convention—denial of access to justice. Does the noble and learned Lord agree that there is a problem about that here, and the Council on Tribunals no doubt agonised for precisely that reason?
§ Lord Archer of Sandwell
I hope that I will not embarrass the noble Lord, Lord Haskel, if I express total agreement with what the noble Lord, Lord Lester, has just said about the provision of aid and advice. We might discuss whether there are other ways of doing it, but he and I will be solidly shoulder to shoulder on this. I do not believe that the amendment addresses that problem, and so I do not think that this is the occasion on which to address it. It seems to me that nullifying the effects of Clause 2 just means that the cure is worse than the disease.
§ Lord Wedderburn of Charlton
I support my noble friend Lady Turner in regard to Amendment No. 4, which may perhaps be lost in the debate on the other amendments, in view, as my noble and learned friend said, of the somewhat eccentric groupings that we have today. One of the cases in which a worker should not have anything other than a proper and full inquiry by the tribunal is the matter which either opens or closes the door to the portals of justice in the employment tribunals—the decision as to whether or not he or she is an employee.
The next time Members of the Committee go to buy their maxi-burger across the counter from a young person they should try to decide whether that young person is an employee. You will almost certainly find that they are on zero hours; that is to say, that they come at beck and call—the Germans call it kapowaz—of the employer. They come when called; they go when told to go away. Some of them are paid for the time that they are there. Others I have come across—extraordinary—are paid for the number of minutes they move; that is to say, they come when called and sit on a chair. When business goes up they are called for to serve more maxi-burgers.
Members of the Committee may be able to work out whether there is a contract with a particular young person; what that contract is; whether it is unilateral or synallagmatic; whether it is a normal contract to pay a certain amount for certain hours. The types are almost endless. It is at that point—whether or not the tribunal can find a contract of employment—that justice is either shut out or opened, at least as a possibility.
There is a strong case with the developments in the labour market—what is usually called the flexibility of the labour market, which means that people are called 641 upon to do different types of things, and cannot resist because they want the job—that it should be vital that the hearing be as full and detailed as possible, and that the wisdom of the wing persons be added to that of the lawyer in the chair. I beg my noble friend the Minister to say that he will at least consider the point in Amendment No. 4 at some point between now and Report.
§ Lord Haskel
Although we share my noble friend's sympathy for the amendment, I am afraid that the Government do not support the amendments, because they place unnecessary burdens on both tribunals and the users of tribunals. They also remove measures that the Government wish to introduce, which we believe will improve tribunal procedure. We attach a great deal of importance in the Bill to improving tribunal procedures.
Amendment No. 1 would force parties to seek advice before making a decision as to how the tribunal can determine their case. As my noble and learned friend Lord Archer said, the Government consider it important that parties to proceedings should seek the advice that they consider appropriate. I can assure my noble and learned friend that we encourage them to do so, for example, in the guidance and other literature which is provided to the parties. However, the Government would not wish to seek to require the parties to take advice, save in exceptional circumstances. A circumstance where it is necessary for there to be additional safeguards is where the parties enter a compromise agreement, because in doing so they forfeit their right to have their case determined by a tribunal. Such a right is not in question here.
Amendment No. 3 would prevent the tribunal from determining cases without hearing evidence where it is bound by a decision of a superior court. I assure the Committee that the Government do not intend that power to be used where the decision of a superior court is being appealed to a higher court. Our intention is that the provision will be used only where the law is settled. It does not prevent a party from challenging the settled law by appealing through the judicial system. We do not consider it necessary to introduce an express power for the tribunals to stay proceedings. That, in practice, occurs already, where the tribunal considers the interests of the party and justice so require.
I turn to Amendment No. 4. I am not sure that the amendment addresses the problem which my noble and learned friend Lord Wedderburn stated so eloquently. Amendment No. 4 would undo the good work which has taken place in streamlining procedures to weed out those cases which a tribunal has no jurisdiction to hear. Our intention is to clarify that a full hearing is not necessary where a tribunal is able to decide a preliminary hearing that the applicant does not have a right to bring a case; for example, because he or she is not an employee to whom the right applies. We feel that the amendments would hamper our efforts to improve the tribunal system.
§ Lord Archer of Sandwell
I am most grateful to my noble friend for giving way. Does he agree that there is 642 nothing in the clause at present which would preclude the fullest argument as to whether or not someone is an employee?
§ Lord Haskel
I think that my noble and learned friend is right on that. As I was saying, the three amendments would hamper our efforts to improve the tribunal system, which, as I said at the start, is the whole purpose of the Bill. I hope that the Committee will reject the amendments.
§ Lord Campbell of Alloway
I am sorry to intervene. Incidentally, neither his noble friend nor I is learned in this place. We are just ordinary Lords. I take the point that the Government are trying to improve the procedure. Following that point, I went against Amendments No. 1 and 3, but let us look again at Amendment No. 4 with an open mind. There is nothing there that is detrimental to the procedure. There is no logical objection to Amendment No. 4. Words are being used, but I cannot understand the substance of the objection to Amendment No. 4. It can only do good. It is fair; it is reasonable; it is just; and it conforms with the rudimentary requirements of the European convention. What is wrong with it? Why do the Government object to it? They cannot just stick to a brief and go on saying the same thing. What is the logical objection?
§ Lord Haskel
The objection is as I said before. Amendment No. 4 would undo the good work which has taken place in streamlining procedures to weed out those cases which a tribunal has no jurisdiction to hear. The purpose of the Bill is to speed up the tribunals' work.
§ 5 p.m.
§ Lord Mishcon
Before my noble friend sits down, perhaps I may deal with a point appositely raised by the noble Lord, Lord Campbell of Alloway; that is, who in this House is entitled to be called learned. In the other place—Members will forgive me if I use the word "merely"—one must be merely a Queen's Counsel in order to be called learned. The obvious lesson is that who is learned in the House of Commons is not deemed to be learned in the House of Lords.
§ Lord Archer of Sandwell
I am grateful to my noble friend for giving way. I believe that the reference was to me. I understand that former Law Officers are learned in this House, at least in the technical sense.
§ Lord Mishcon
My noble and learned friend is right. I was trying to say that someone who is learned in the House of Commons because he is a Silk is not deemed to be learned in this House. That means we have a different level of what is learned.
§ Lord Lester of Herne Hill
Before the noble Lord continues, and while we are seeking to ensure that our usage is correct, does he agree that another undesirable practice has crept in; that is, to refer to a Minister as "the noble Minister"? I believe that that is incorrect—at 643 least, at an early stage in the previous government I was rebuked for saying so. It seems to me that all Lords are noble but Ministers are no more noble than anyone else.
§ Lord Mishcon
If we continue to deal with anachronisms which exist between the two Houses, we shall stray from the main purpose of the debate.
Does the Minister agree that everything that was said in regard to Amendment No. 1 would be cured if only the Government would announce in the near future that their legal aid programme included appearances before tribunals? Not only would that be a gracious move, about which we spoke in Opposition some time ago, but it would also save more money than it would expend because the tasks of tribunals would be simpler and would occupy far less time.
§ Lord Haskel
I can respond to my noble friend only by saying that the issue of legal aid for appearances before tribunals is one on which I ought to take advice and return to him.
§ Baroness Turner of Camden
I thank the Minister and my noble and learned friend Lord Archer for responding to the amendments so fully. As regards Amendment No. 1, which deals with seeking advice, I am glad to learn from the Minister that it is intended to encourage people to seek advice. Perhaps as a trade union official I may say that one encouragement would be for everyone to belong to a union. If they were dismissed they would from day one have automatic access to independent and adequate advice. Unfortunately, not everyone belongs to a union. Therefore, I hope that everyone will be encouraged to take advice before attempting to reach consent or written agreement under the Bill. I hope that if people turn to advice bureaux—for example, the NACAB—they will ensure that people are given independent and adequate advice. It is not my intention today to divide the Committee on this amendment. I shall read with great care what has been said by the Minister and my noble and learned friend.
Amendment No. 3 deals with a legal point. I note what has been said and will take no further action today. However, as regards Amendment No. 4, I strongly believe that we are dealing with a different and important matter. The issue of whether or not a person is an employee is of considerable complexity. As my noble friend Lord Wedderburn indicated, there have been considerable changes in the labour market. There has been a growth of contract labour of one kind or another in respect of which it is not clear whether a person is self-employed or an employee. Furthermore, there has been a growth in "zero employment" when people take up work often because it is all they can find. Their position in relation to employment law is somewhat confused.
I note what has been said today. It is not my intention to divide the Committee, but I believe that Amendment No. 4 in particular is of importance. I hope that the Minister will look at it before the Report stage 644 because several noble Lords, including the noble Lord, Lord Campbell, expressed great anxiety about the issues it raises. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Wedderburn moved Amendment No. 2:
Page 1 line 24, after ("determination") insert ("or stay").
§ The noble Lord said: The division of labour in our labour market means that Amendment No. 2 falls to me. I shall move it briefly, almost formally, for a particular reason. It suggests merely that the tribunal in regard to its form in Clause 2 has the power not only to determine the matters before it but also to stay the proceedings. It may be that that meaning of the amendment led the groupings to include Amendments Nos. 6 and 7, both of which are concerned with the more important question of representative, group or test actions—whatever they are to be called—which have grown in importance in employment law. I know that my noble friend Lady Turner wishes to speak on that issue and that the noble Lord, Lord Lester of Herne Hill, has tabled an amendment in that connection. Amendment No. 2 is therefore a paving block for their amendments. I beg to move.
§ Baroness Turner of Camden
I shall speak to Amendment No. 6 which is grouped with Amendment No. 2. It would enable tribunal rules to make provision for test cases or representative proceedings in cases where a number of workers' rights depends upon a test action instead of each having to enforce their rights individually.
Every trade union official has had to deal with cases in which a number of members have been dismissed, possibly in exactly the same circumstances. However, because of the nature of our legislation each case must be taken individually. As I know from experience, often willing victims are sought and one or two cases are heard in what amount to test cases. The idea is that if a case is won the employer will apply the findings to all others so affected, rather than face masses of similar cases.
Of course, it does not always work like that. Sometimes the employer may decide to continue resisting or may take the case to appeal. Therefore, the dismissed employees will have to wait longer. If the idea of the amendment were adopted, time would be saved because many cases could be heard together. Furthermore, it would he much better from an industrial relations standpoint because the issue could be dealt with at once and more speedily.
Moreover, the amendment does not prescribe a method; it simply opens the door. The regulations, which are referred to in the amendment, would come later. Therefore, I hope that what is suggested here is acceptable or, if not, that something similar might be considered. It really would make much more sense than the present situation and, in my view, would lead to a much speedier resolution of cases that affect more than one or two employees.
§ Lord Lester of Herne Hill
With the leave of the Committee, I should like to speak to Amendment No. 7. It is really a narrower version of Amendment No. 6. It 645 is more narrowly targeted. Its purpose is to allow the Secretary of State to make provision by regulations for representative proceedings before employment tribunals with respect to an alleged contravention of the Sex Discrimination Act, the Race Relations Act, the Disability Discrimination Act or the Equal Pay Act.
At present, those sorts of representative proceedings are available only in the High Court under Order 15, Rule 12. It would be perfectly possible to alter the industrial tribunal rules of procedure to introduce something similar. Under the current industrial tribunal rules of procedure, Rule 18 allows the tribunal to consider applications together where there is a common question of law or fact arising in some or all of the originating applications or where the relief claimed in some or all of the applications is in respect of, or arises out of, the same set of facts. But it is still necessary for each and every complainant to lodge a separate piece of paper, a separate originating application. In some situations, as I shall explain, where the number of applications can be very large—hundreds or even thousands—the situation is unworkable and unjust.
Before I come to the example, perhaps I may make two comments. First, it is a great pleasure to speak after my mentor, the noble Lord, Lord Wedderburn of Charlton, who tried to teach me contract law some time ago at Cambridge University. I did not learn enough which is why I practise in the field of public law and employment law. Secondly, it is a great pleasure to speak after the noble Baroness, Lady Turner of Camden, because she was a very distinguished trade union official in a case in which I was instructed and which I should like to use to illustrate the problem.
It was the speech therapist case, the case of Enderby and others, which has now gone on for 11 years. The noble Baroness's trade union, under-resourced, was compelled by the absurd rules of procedure, which we are trying to improve and make practical for employers and employees, to file, I think, more than 1,000 originating applications in England and Wales, in Scotland and in Northern Ireland, all to deal with precisely the same points; namely, whether speech therapists, mainly women, could or could not compare their work and pay to hospital pharmacists and clinical psychologists so as to have their EC rights to equal pay for work of equal value.
The case, as I say, has so far lasted for 11 years. Because all those pieces of paper had to be issued up and down the country, instead of having a single piece of paper on which one could, if necessary, list the workers concerned in an orderly way and have the issue determined in an orderly way in one tribunal, health authorities and now national health trusts up and down the country on both sides of the Irish Sea and on both sides of the Border have been overwhelmed by those hundreds of originating applications. The union has been unable properly to keep track of all of them. After 11 years of the tortuous proceedings that have been undertaken, many of the applicants have disappeared, died or changed their jobs. Moreover, the whole nature of employers has changed because of the privatisation 646 of the health service. And guess what, my Lords? After 11 years I expect that the Government will say that the regional health authorities must foot the bill.
It does not end there, because your right to have your case decided within a reasonable time is guaranteed again by Article 6 of the European human rights convention and also by European Community law where the equal pay and treatment directives guarantee right of access to an effective judicial process. The ludicrous gap in the procedures of the industrial tribunals means that when there is a common point of fact or law which can decide the case for everybody, instead of employees or employers being able to have it gathered together in one forum, one tribunal, and dealt with properly, there is a quite absurd situation. I hope very much that when we hear from the Minister in due course we shall not be told that we should wait for wider studies or consultation on this aspect.
I understand that the position is that the noble and learned Lord the Lord Chancellor has set up a working group to consider introducing the concept of representative action into British law generally, mainly for consumer-related claims. As I understand it, the Department of Trade and Industry has asked the working group to consider the question of representative proceedings in employment tribunals. The DTI would like to see those recommendations before it decides to make provision for representative proceedings before industrial tribunals. I believe that there is to be a consultation paper in a matter of some months.
With great respect, that is not good enough when one is dealing with the urgent need for speedy access to justice in this class of case. It is extremely important that at the very least we put into this Bill a power—and that is all it is—in the Minister to be able to provide for that procedure by subordinate legislation. Otherwise, we shall have to wait for another government measure, a primary measure, before we can achieve that power. I know that the TUC would like to see something on those lines and is particularly concerned about equal pay claims, as am I. Therefore, I very much hope that whatever may be the wider questions, at least in the area of discrimination law and equal pay we shall be able to give to the Secretary of State the power to enable that to be done as soon as possible.
§ Lord Archer of Sandwell
We are in a slightly curious position with these amendments. Most of my noble friend's amendments are designed to curtail the power of the court to take a decision without having a full hearing. This amendment seeks to extend the court's power.
In relation to Amendment No. 2, I hope that my noble friend will accept that her amendment is not necessary. In the kind of the circumstances which I think she contemplates, chairmen usually direct that a case should not be listed until the appropriate time; for example, when a particular point of law has been decided. Usually, when the application is made, that direction is given. They do that without any hearing at all, even the limited kind of hearing which Clause 2 contemplates. To require them to hold any kind of formal hearing would simply add a further layer to what takes place. 647 Therefore, I hope my noble friend will accept what I hope is an assurance I can give that the power which she seeks to confer is not necessary because it exists already and is used.
I turn now to Amendments Nos. 6 and 7. The presidents of the industrial tribunals, whom I think both the Government and I have consulted, have taken the view that the existing powers under the rules are sufficient for multiple cases to be handled. For example, tribunals are able to arrange for test cases in cases where there are multiple claims. The Froege Fisscher case is an obvious example. I should be reluctant to compel tribunals to adopt procedures which might not be suitable in all cases. However, before I move on, there is something that I should mention. I am not blaming anyone for it because it is one of those things that we have to contend with in this Chamber, but some of today's amendments were tabled at a very late stage. My noble friend Lord Haskel and I have been in and out of meetings all day. We have been receiving briefings in the manner of one sheet of paper at a time. I am not sure that I would want to lay down any hard and fast rules in that respect at this stage. My noble friend Lord Wedderburn has just reminded me that our amendments were tabled last week; it is now Tuesday of this week. I make no further comment save to say that, "It ain't easy kid". That was the point I was trying to make.
I turn now to Amendment No. 7 tabled by the noble Lord, Lord Lester. We were not wholly taken by surprise that what the noble Lord largely had in mind were the speech therapist cases. They are difficult. We all know that swathes of management and personnel consultants make a living out of trying to organise personnel and pay structures. Frequently no two such cases are alike. It is not always easy to ensure that a decision on one case should apply to all the others. I am sure that the noble Lord would be the last to suggest that this is an easy field.
§ Lord Lester of Herne Hill
I am grateful to the noble and learned Lord for his comments. Obviously I did not succeed in explaining the problem. It is a mechanical problem. Quite simply, if there are 1,000 individual alleged victims who want to bring forward their cases, each of them must fill in his own originating application and submit it to different tribunals throughout the United Kingdom. The relevant officials must then try to group it all and decide what to do about it, while the union involved has to chase up the matter. However, a single piece of paper could list the names of all those 1,000 people and the matter could be remitted to one tribunal.
When the presidents of the industrial tribunals are consulted about test cases, that is the right course to take. However, I am not referring to test cases; I am referring to the ludicrous mechanical problem whereby one has to fill in all these bureaucratic forms against different employers, all with the same common defence imposed upon them by the Secretary of State. If we are trying to improve efficiency for employers, employees and industrial tribunals, I ask rhetorically: what on earth is the objection to a power (which is all it is) to 648 introduce representative proceedings in order to gather such cases in an orderly, inexpensive and efficient way? Thus far I have not heard any argument to suggest that that is a bad idea.
§ Lord Archer of Sandwell
I would certainly not suggest that it is a bad idea. I fully take note of the noble Lord's point and believe that it should be addressed. If such a provision had been in the Bill, I can well imagine that some of my noble friends—and, no doubt, the noble Lord—would have said, "Yes, we must have safeguards here. We must think the matter through and ensure that, before anyone allows his name to go down, he has received adequate advice". So it is not a matter that can be dealt with at a stroke. I am not really saying any more than that. We would be making a fairly substantial departure from present procedures if we accepted the amendment. I do not believe that we should leap into such action.
As the noble Lord said, my noble and learned friend the Lord Chancellor has established a working group to look into the whole question of representing a range of interests. As I understand it—and my noble friend the Minister will correct me if I am wrong—the group will be meeting over the next three or four months and then, as the noble Lord suggested, there is likely to be a paper for consultation.
In those circumstances I should have thought that it would be sensible to await the outcome of such a review. If one is to try to address a problem, there is a great deal to be said for getting it right rather than for getting it wrong and having to put it right in two years' time. It seems to me that that would be sensible rather than attempting to rectify the situation in Committee. We should really await the outcome. For those reasons I hope that my noble friend and the noble Lord will consider withdrawing their amendments. That does not mean that I do not think they have a point. Moreover, it does not mean that I cannot say what my noble friend Lord Haskel cannot say—I will be on their side if they have to lobby the Government. I am only saying that I would like to be clear about what it is we seek to achieve. In my view, we should wait until all that information is available to us before we jump in.
§ Lord Haskel
For the sake of clarity, I should point out to Members of the Committee that I am speaking to Amendments Nos. 2, 6 and 7. Like my noble and learned friend Lord Archer, I have some sympathy with the aim of the amendments. I know that the handling of multiple claims made to industrial tribunals can be difficult. Indeed, the noble Lord. Lord Lester, described them in a most eloquent manner. However, we believe that tribunals have sufficient powers to deal with them. It is not clear whether powers are required in order to give effect to dealing with cases in the way suggested.
It is important not to restrict the powers of tribunals to deal with such cases in the manner that they judge to be most appropriate. In particular, the question of representative action requires a good deal of thought. As my noble and learned friend Lord Archer noted, such action would involve a radical departure from existing practice. However, having said that, I can assure the 649 Committee that the Government will carefully consider the recommendations of the working group set up by the Lord Chancellor to ascertain whether any action needs to be taken in respect of industrial tribunals.
In addition, the Equal Opportunities Commission is reviewing the Equal Pay Act and the Sex Discrimination Act. It will be reporting its findings in the Spring of 1998. Rather than anticipate what the commission might propose, I believe it would be better to await the outcome of its review. The EOC's proposals can be given proper consideration and the Government can give their response to them. I am sure that the commission is only too well aware of the difficulties involved in equal pay and equal value cases. Moreover, the Government have announced that a ministerial task force is to be set up to implement the manifesto commitment concerning enforceable and comprehensive civil rights for disabled people. Again, I believe it would be sensible to await the outcome of that review.
§ Baroness Turner of Camden
I thank my noble friend the Minister and my noble and learned friend for their responses to my amendment. I am very glad to learn that it is generally understood that there is a problem here. I am grateful for that assurance and for the assurance that consideration is being given to the matter by the government body to which my noble friend referred.
Multiple claims have been a problem from the very beginning of industrial tribunals. When they were first introduced, I can clearly remember making regular submissions on behalf of my union before industrial tribunals. If you got more than one or two people involved in an issue, you tried to find someone who would be a suitable test case. You would then take the case and hope that, if you won it, the results would be applied to other employees. However, as I said earlier, it did not always work out in that way.
The amendment is an enabling measure. It simply provides for regulations to be introduced. Indeed, it does not specify any kind of procedure because that was not our intention. In speaking to his amendment, I am very glad that the noble Lord, Lord Lester, made reference to the speech therapist case. That is really an example of a case which seems to have gone on for a very long time. Certainly my union would not have been able to have embarked upon so lengthy and expensive a procedure had there not been support from the EOC. I happen to know that the commission is also concerned about the whole business of representative proceedings.
In fact, when I was a member of the commission, that precise point was included among the representations that we made from time to time to improve legislation. I am sure that the commission will want to proceed with the issue. Nevertheless, I do not intend to divide the Committee at this stage of the proceedings. I shall simply emphasise again that this was an enabling amendment to ensure that regulations would be introduced. That could of course be quite complex and detailed consideration would have to be given to such regulations before they could be introduced. I still think 650 that there is a strong case for the amendment but I accept that my noble friend the Minister is seized of the problem.
§ 5.30 p.m.
§ Baroness Blatch
Before the noble Baroness sits down, perhaps I may ask the Minister a question. In responding to the amendment the Minister referred to enforceable civil rights for the disabled. In response to a Question today in this Chamber the Minister responsible for employment referred to a timescale but said that it was not likely to come into being until the year 2005. What is the timescale for this measure?
§ Lord Wedderburn of Charlton
I hope that the Minister will read carefully the debate that has taken place today. As regards the point about representative action, in a sense all that is being asked is that we take the High Court practice under order 15, rule 12, to which the noble Lord, Lord Lester, referred, and apply it to industrial or employment tribunals. As regards the working group of the noble and learned Lord the Lord Chancellor, can the Minister find out—I am sorry to add to his burdens—by Report Stage whether or not that working group will deal with industrial tribunals, or employment tribunals as I must learn to call them now that we have dealt with Clause 1? I had thought that the working group would not deal with those tribunals, at least until a later stage. If the Minister can enlighten us on that point, that would be extremely helpful. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 and 4 not moved.]
§ The Deputy Chairman of Committees (Lord Dean of Harptree)
I am afraid that the noble Lord has missed his opportunity.
Lord Archer of Sandwell moved Amendment No. 5:
Page 2, leave out lines 34 to 38.
§ The noble and learned Lord said: It may be for the convenience of the Committee if, in moving Amendment No. 5, I speak also to Amendment No. 40. I do not think that I need detain the Committee for any great length of time. These are two technical amendments to give effect to something that was always the intention. Tribunals already have the power to require written answers to questions which they formulate. If a party fails to answer a question, his or her case may be struck out. However, if there are more than two parties involved, that may not prove to be an adequate sanction and the dispute may still require a full hearing when otherwise that could be avoided.
§ The effect of Clause 2 is to introduce the sanction which now exists in Section 7 of the Industrial Tribunals Act 1996 which makes failure to comply an offence. 651 The danger is that that may be thought to deprive tribunals of the power which they have in other cases. What no one wishes to do is to prevent tribunals exercising the powers they already have. The purpose of these amendments is simply to make clear that Clause 2 does not affect any of the other tribunal powers. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ [Amendment No. 6 not moved.]
§ Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 7:
§ After Clause 2, insert the following new clause—