§ 8.20 p.m.
§ Read a third time.
§ Clause 3 [Hearings etc. by chairman alone]:
Lord Archer of Sandwell moved Amendment No. 1:
Page 2, line 38, leave out ("(4)") and insert ("14A)").
§ The noble and learned Lord said: My Lords, with this amendment, it may be for the convenience of your Lordships to discuss Amendments Nos. 1 to 8, 21 and 24. It will certainly be in the interests of expedition.
§ With this group of amendments we return to a discussion which has occupied your Lordships on a number of earlier occasions. The principle of relieving senior judicial officers of part of their burden by delegating that work to less senior officials probably with less experience and fewer qualifications was not invented for the purpose of this Bill. At least since the 14th century the Lord Chancellor was assisted by magistri cancellarii—the earliest chancery masters. Many of us in your Lordships' House have passed happy hours in the Bear Garden arguing before Masters of the Supreme Court matters with which it was not deemed necessary to trouble a High Court judge. And if cases are to be heard more quickly, it would be sensible to relieve chairmen of part of their burden if that can be done consistently with proper standards.
§ If your Lordships accept that reasoning, there remain two questions. First, what powers may properly be given to these officials whom we are calling legal officers? Secondly, how far should we seek to define those powers rigidly in primary legislation? On the first question I suspect that we are largely in agreement. But this is an experiment. I do not claim that every provision in the Bill is right for all eternity. I am wary of seeking to set it all in stone in every detail.
§ For myself I welcome the Government's intention as stated in our earlier debates by my noble friend Lord Haskel to conduct a pilot scheme, and a pilot scheme would be pointless unless we left some flexibility to take advantage of what was learned from that scheme.
§ That brings us to the second but related question: how far then should we define the duties and powers of legal officers in primary legislation? It is always a question of balance how far Parliament should delegate to Ministers a wide discretion. If the delegated powers are too wide, they may be abused by some future administration, or used in a way which Parliament would not have intended. If they are too narrow, there may one day transpire to be a situation for which we failed to make provision. As a colleague is reputed to have said in another place, "Prediction is always difficult especially when it relates to the future".
§ Legislation which leaves no flexibility is likely to produce a situation where everyone agrees what should be done but no one has power to do it. In our earlier debates, the noble Lords, Lord Lester, and Lord Renton—I see that at present the noble Lord, Lord Renton, is not in his place—were critical of the wide powers delegated to the Executive under Clause 5 as 1013 originally drafted. I agree that there is force in that observation. Indeed, I tried to go some way towards recognising it by moving an amendment on Report.
If I may interrupt myself, perhaps I may correct one slip in the record of that debate which arose no doubt because I was muttering inaudibly at the time. The noble Lord, Lord Lester, commented that the Scrutiny Committee had failed to comment on the breadth of those powers. When I replied, I am accused in the Official Report of saying,
I accept what the noble Lord said: that the Scrutiny Committee overlooked this point. As a member of that committee I must share some of the blame, and I do so".—[Official Report, 20/4/97; col. 702.1
What I actually said, as I am sure the noble Lord will recollect, was,
If the Scrutiny Committee overlooked this point I must share some of the blame".
§ I have subsequently checked, not least because my attitude to possible amendments to the Bill would be strongly influenced by the views of the committee. In its fourth report, the committee noted that certain clauses including Clause 5 made amendments to the Act of 1996 which modified the existing regulation-making power, but without affecting parliamentary control. It commented that some of the changes are important, but that none appeared to raise questions which the committee thought necessary to draw to the attention of the House. The noble Lord is entitled to disagree with that judgment, but it was not by oversight.
§ So where should the balance lie? The noble Lord, Lord Renton, has tabled an amendment which substantially repeats the amendment tabled on Report by the noble Lord, Lord Lester, and concerns legislating to empower legal officers to make interlocutory orders. I recall that, unhappily, the noble Lord, Lord Renton, had to leave before the conclusion of that debate for unavoidable reasons, but if he has read the report of that subsequent debate he will have seen that there are some duties which, as I understand it, no one would wish to preclude legal officers from undertaking and which are almost certainly not included in the term "interlocutory"—for example, making an order dismissing proceedings where the application has been withdrawn.
§ I understand that it is with a view to meeting that difficulty that the noble Lord, Lord Lester, has tabled his amendment. The noble Lord seeks to deal with the matter by writing into the primary legislation a list of all the powers and functions which the regulations may confer on legal officers. I hope he will forgive me if I make two comments on that.
§ First, if we specify in detail in primary legislation what the regulations are to say, there is no point in giving power to make regulations. The whole purpose of delegated legislation is that it should confer a degree of flexibility which could not be achieved by writing the entire context into the primary legislation.
§ I appreciate, of course, that the noble Lord's amendment does not seek to compel the Secretary of State to include in the regulations all the powers listed 1014 in his amendment. His amendment seeks to write into the Bill a list of powers and permit the Secretary of State to leave some of them out. But that would be the full extent of the Secretary of State's discretion under the noble Lord's amendment. I believe that that solution would lack the very flexibility which a regulation-making power is intended to create.
§ But there is a further difficulty about the noble Lord's solution. The procedures of the tribunal, the kind of orders which may be made either by or for a tribunal, are set out in regulations. The functions listed in the noble Lord's amendment are conferred on tribunals by regulations.
§ It is rarely if ever good practice to refer in primary legislation to matters for which provision is made in secondary legislation, as I am sure the noble Lord, Lord Renton, would agree. The reason for that is that the secondary legislation may from time to time be amended, so the primary legislation may be left making reference to a process which no longer exists or which is no longer in the same form. If the secondary legislation is amended to provide for a new process, the primary legislation will make no reference to it.
§ Perhaps I may offer an example. Only recently, the regulations were amended to confer on tribunals a power in effect to order interrogatories. I make no judgment as to whether legal officers ought or ought not to have power to order interrogatories. But if this Bill had already been on the statute book when those regulations were amended, and had it been in the form proposed by the noble Lord, Lord Lester, no one would have had power even to consider whether that function should be conferred on legal officers in the absence of new primary legislation to amend this Act. I do not believe that that is a situation which the noble Lord would wish to bring about.
§ My Amendments Nos. 5 and 8 are designed to meet the anxieties expressed on Report by specifying on the face of the legislation what a legal officer may not be empowered to do. He would not be empowered to carry out a pre-hearing review, nor any of the new procedures under Clause 2 of the Bill. He would have no power to determine proceedings except where an application has been withdrawn or the parties have reached a settlement.
§ And of course he would not have to be empowered to determine all proceedings even in those circumstances. He could be empowered to determine proceedings where the parties have reached a settlement in some circumstances but not in others. As my noble friend Lord Haskel has said more than once, the regulations would not be made without full consideration and consultation with those concerned.
I am indebted to the Employment Lawyers Association for advice on this Bill. I believe that the noble Lord, Lord Lester, has very good and close relations with that association. In our earlier debates he quoted from letters. I hope he will forgive me if I read from a letter which I have received from the association.' It states:
We have carefully considered whether it is preferable to identify in the Bill the powers which Legal Officers may not exercise, or to list those powers which they may exercise. We can see arguments for both approaches. However, we consider that the latter approach
(i.e. to list the powers which they may exercise) carries with it two dangers … First, it risks omitting from the list powers which currently exist and which it may be thought appropriate to be exercised by Legal Officers … Secondly, if further interlocutory powers were given to Tribunals by amendment of the Tribunal Rules, it would then become necessary to amend the Act to enable Legal Officers to exercise such powers. For example, in recent years, the Rules were amended to permit orders requiring parties to answer questions—
the example to which I just referred.
This is the type of order which. in an appropriate case, could be made by a Legal Officer. If such a new power was granted in future. it would he unfortunate if an amendment to the Act were necessary. failing which the Legal Officer could not exercise such a power".
§ With the assistance of the Government, I have tried to meet the concerns of the noble Lords. I hope that they will feel able to accept the proposal embodied in my amendments.
§ Perhaps I may add that the other amendments in this group which I hope to move are consequential on those proposals, or an attempt to tidy up drafting anomalies which came to light during our deliberations. If your Lordships wish for a fuller explanation, I will of course be happy to provide it; but I suspect that it may not increase my popularity rating. Amendment No. 1 is one of the consequential amendments. I beg to move.
§ 8.30 p.m.
§ Lord Lester of Herne Hill
My Lords, I wish to speak to these amendments, together with Amendment No. 6 standing in my name and Amendment No. 7 standing in the name of the noble Lord, Lord Renton. I am grateful to the noble and learned Lord—
§ The Deputy Speaker (Lord Brougham and Vaux)
My Lords, may I interrupt the noble Lord? If Amendment No. 5 is agreed to, I cannot call Amendments Nos. 6 and 7.
§ Lord Lester of Herne Hill
My Lords, I follow that point. That is exactly why I am speaking to this group of amendments at this stage.
I am grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very full explanation of the position. Essentially, there has been significant progress in clarifying the scope of the powers that are capable of being delegated to legal officers. The House has a choice of three different legal methods of arriving at the same conclusion. The first method, which I tried at an earlier stage and which is set out in the amendment which stands in the name of the noble Lord, Lord Renton, was to capture the problem by referring to it as interlocutory in nature. As the noble and learned Lord, Lord Archer of Sandwell, indicated, the defect in that approach is that it fails to capture some functions which are not interlocutory.
The second approach, which I endeavoured to follow, was to list on the face of the Bill, as the noble and learned Lord indicated, everything that is indicated in the Notes on Clauses or in speeches made on behalf of the Government as to any conceivable power that might be delegated to legal officers. The problem in relation to that was well canvassed in the letter from Mr. Paul Goulding, the deputy chairman of the Employment 1016 Lawyers Association, to whom perhaps I may pay tribute as being an outstanding lawyer, even though a member of my chambers, and someone who is committed, as I am sure he would like me to point out, to New Labour and this Government in particular. He speaks as a very experienced employment lawyer, as do his colleagues.
In the letter, the association rightly points out that it is a question of balance. The letter explains why, on balance, the association prefers the noble and learned Lord's amendment to my own. Perhaps I may also mention one or two other matters to which the letter refers since they are important. Although the association agrees in broad terms with that approach, the letter states:Legal Officers should be able, in appropriate cases, to deal with interlocutory matters and disposals following withdrawal or settlement. We say in appropriate cases since there may be interlocutory disputes and also disposals following withdrawal or settlement which are sufficiently complex to justify a Chairman sitting to determine the issues. For example, where a settlement provides for payment by instalments and dismissal of the complaint only upon payment of all instalments, with a stay in the meantime. it may not be appropriate for a Legal Officer to make such an order. We hope that the Regulations which will follow the pilot study will provide a mechanism for the allocation of straightforward issues (whether interlocutory or final of the kind discussed above) to Legal Officers, while the more complex matters may still he dealt with by a Chairman [rather than a legal officer]".The letter also emphasises the association's hope that,the Secretary of State will consult fully with practitioners on the pilot study, its results, and the subsequent draft regulations".I very much hope that the Minister will be able to give some indication that those views will be taken seriously and heeded when it comes to any draft regulations.
§ Lord Archer of Sandwell
My Lords, I am grateful to the noble Lord for giving way. That, of course, was precisely why I included both those points in my remarks.
§ Lord Lester of Herne Hill
My Lords, I believe that I made it clear, but I shall now make it quite clear, that I have been persuaded both by what has been said by the noble and learned Lord, Lord Archer of Sandwell, and the proposals put forward by the Employment Lawyers Association that my two approaches—interlocutory or listing on the face of the Bill—do not adequately capture what is needed. There needs to be flexibility. I very much hope that the Minister will be able to confirm that he and his department do not consider it probable that they will wish to go beyond the list that I have made and the additional point made by interrogatories at this stage. The Government have made that pretty clear in the Notes on Clauses, but it is important in this debate to be clear as to what the Government intend by these powers. As I understand it, they intend no more than I have listed, with one or two marginal additions. Having said that, I support the amendment of the noble and learned Lord. Lord Archer of Sandwell.
My Lords, I propose to confine myself to the amendments to Clause 5. When I tabled my 1017 amendment, Amendment No.7, the noble and learned Lord's amendments had not been put forward. I do not propose to press my amendment this evening.
However, what worried me was the opportunity for the chairmen of the tribunal to make regulations dealing with a vast range of matters. I did not think that that was right. The amendment which I tabled was the same in effect as that tabled by the noble Lord, Lord Lester of Herne Hill, at the Committee stage. I supported him then and thought that he was right. I was not so convinced by his rather elaborate amendment, Amendment No. 6, which seems to include matters which are interlocutory, or could be.
Having heard what the noble and learned Lord, Lord Archer, said and having considered carefully his amendments, although he has abandoned what I hoped might be the solution to the problem—namely the avoidance of much detail—in the circumstances we must accept it. I only add that legislation is always better, more effective and better understood by the people who have to obey it and implement it if it is not too detailed, and if it states principles rather than detail from which principles have to be inferred.
That is the reality of the situation tonight. If my amendment should be pressed, I would oppose the amendments of the noble Lord, Lord Lester. I have great regard for him and have co-operated with him on various occasions but I would oppose his amendments if he pressed them. However, I gather from what he said that he will not do so.
§ 8.45 p.m.
§ Lord Haskel
My Lords, the Government fully support the initiative of my noble and learned friend Lord Archer in proposing Amendments Nos. 5 and 8, which we hope will meet your Lordships' concerns regarding the provisions relating to legal officers.
In light of noble Lords' continuing reservations, the Government have endeavoured, with the help of my noble and learned friend Lord Archer, to go some way towards resolving the problems as noble Lords see them by restricting the power taken in the Bill. As my noble and learned friend indicated, the Government are opposed to limiting the power by listing those functions, as in Amendment No. 6 tabled by the noble Lord, Lord Lester, which we consider might be appropriate on the face of the Bill. That would be against the scheme of the existing legislation.
As my noble and learned friend Lord Archer said, for obvious reasons of restriction the Government consider it to be inadvisable to refer to the provisions of secondary legislation in the primary legislation, either directly or by implication, when that secondary legislation may from time to time be altered.
We are loath to make changes to the Bill which might lead to unforeseen difficulties in the future which could only be put right by primary legislation. But I can assure the noble Lord, Lord Lester, that the points that he made will be carefully considered. That is why I am afraid that the Government cannot accept Amendment No. 6 tabled by the noble Lord, Lord Lester.
1018 We must also oppose Amendment No. 7 tabled by the noble Lord, Lord Renton. As has already come out in the discussion, his amendment is similar to that which he supported at the Report stage, introduced by the noble Lord, Lord Lester, in that it proposes that legal officers are limited to purely interlocutory functions. As I indicated at Report stage, the Government consider "interlocutory" to be too narrow for our purposes. In particular, we are concerned that it would prevent legal officers from making determinations where the applicant has withdrawn his case or where the parties have reached a settlement. We consider such determinations to be eminently suitable to be taken by a legal officer, but they could not be defined as interlocutory.
I therefore urge noble Lords to join me in supporting Amendments Nos. 5 and 8 tabled by my noble and learned friend Lord Archer, which would limit the functions of legal officers by preventing them from determining proceedings before a tribunal, other than in the two suitable circumstances which I have just outlined. The amendments thus specify what legal officers may not do on the face of the primary legislation, leaving the detail of those tasks which they can perform to the regulations.
I also hope that noble Lords will join the Government in supporting the initiative of my noble and learned friend Lord Archer in moving minor technical amendments to Clause 3 which are consequential upon his amendments to Clause 5. The need for these amendments only became apparent when we came to look at possible ways of meeting your Lordships' concerns relating to legal officers. They will usefully clarify the existing provisions regarding the duties which chairmen perform on behalf of the tribunal rather than as the tribunal. They will guarantee a clear distinction between those tasks which a legal officer might perform and those which chairmen carry out for the tribunal.
Perhaps I may once again assure noble Lords that all regulations giving powers to legal officers will be drafted in full consultation with the tribunal presidents. The Government regard the role of the presidents in this and in the pilot project as particularly important. Changes to the procedure regulations relating to legal officers will also be subject to consultation with the Council on Tribunals and to parliamentary scrutiny.
§ Lord Archer of Sandwell
My Lords, I am most grateful to my noble friend for what he has said, particularly for the last sentence. Once again I have to declare an interest. I am also grateful to the noble Lords, Lord Lester and Lord Renton, both for their conciliatory attitude and for their courtesy in telling me beforehand what was in their minds.
It is almost churlish perhaps for me to make a point in the circumstances, but I could not resist doing so. The noble Lord, Lord Lester, said that he hoped that the Government did not have in mind to confer on legal officers any powers other than the ones which were included in his list. I remind him that in the letter to which he and I referred there were two examples of 1019 additional powers which neither of us had thought of. I shall not go into detail, but one was an exchange of lists.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble and learned Lord for giving way. I appreciated that. What I had intended to say and had hoped that I had said is that in addition to my list I hoped that the matters that had been referred to in that letter were the only other matters that the Government had in mind at the moment. That was for the good reason that otherwise Parliament would not be properly informed as to the Government's intentions. I did not confine it to my list, or did not mean to do so.
While on my feet, perhaps I may also make it clear that I did not wish in my earlier speech to criticise the Delegated Powers and Deregulation Committee, for whose work I have unbounded admiration. However, I doubt whether even its members are capable of anticipating all circumstances in which over-broad powers may be sought. It seems to me that what has happened in this case indicates that they may have nodded slightly on this occasion by not appreciating the need for the amendment that the noble and learned Lord has now brought before the House.
§ Lord Archer of Sandwell
My Lords, I am grateful to the noble Lord for both those clarifications. Perhaps I may adopt the point which he made in relation to the latter question, to reinforce what I was saying about the earlier matter. The point I was making was not that here was a power which had not been included, but that the fact that we are all at this stage thinking of matters which had not occurred to us earlier should not lead us to conclude that we have now thought of all the matters and that no one will ever think of another one. That was the only point I was making.
The noble Lord, Lord Renton, rather indicated that we have overloaded my amendment with detail. We were trying to balance an absence of detail—I have always supported the views of the noble Lord and his committee in relation to the importance of simplicity—against writing in the safeguards for which he and the noble Lord, Lord Lester, were arguing. I thought we had the balance right.
I wish to raise just one further matter. It may be that I was being somewhat dim and misunderstood the noble Lord. I thought he said that he was concerned that the regulations referred to in Clause 7 were to be made by the chairman. They are of course to be made by the Secretary of State. I apologise if I misunderstood him.
My Lords, perhaps the noble and learned Lord will forgive me for intervening. I was referring to Clause 5. Fortunately he has cut out that part of Clause 5 with which I found difficulty. At the bottom of page 3 the Bill states that,regulations to be done by a tribunal may he done by the chairman alone.1020 It worried me that the chairman alone should take on such a tremendous responsibility. However, the noble and learned Lord has left that out and replaced it with something which I find more acceptable.
§ Lord Archer of Sandwell
My Lords, perhaps this is not the moment to take that debate further but I am grateful for the elucidation. I would have been prepared to defend the text even before my amendment. I hesitate to say that the matter is academic because some of my closest friends are academics. However, the matter no longer arises for your Lordships.
Nothing remains but for me to wholly endorse the tribute which the noble Lord, Lord Lester, paid to Mr. Paul Goulding. I have been grateful for his help both on this Bill and on other occasions.
§ On Question, amendment agreed to.
§ Lord Archer of Sandwell moved Amendments Nos. 2 to 4:
§ Page 3, line 14, at end insert—
§ ("(4A) Omit paragraph (f) (which specifies proceedings in which the person bringing the proceedings has given written notice withdrawing the case), apart from the word '`and".").
§ Page 3, line 22, after ("(3C)(a),") insert—
§ ("( ) the carrying-out of pre-hearing reviews in accordance with regulations under subsection (1) of section 9 (including the exercise of powers in connection with such reviews in accordance with regulations under paragraph (b) of that subsection).").
§ Page 3, line 28, leave out ("as provided by that subsection") and insert ("by the person mentioned in subsection ( I )(a) alone").
§ The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 2 to 4 en bloc.
§ On Question, amendments agreed to.
§ Clause 5 [Legal officers]:
§ Lord Archer of Sandwell moved Amendment No. 5:
§ Page 3, line 42, leave out from beginning to end of line 10 on page 4 and insert ("After subsection (6A) of section 4 of the Employment Tribunals Act 1996 (which is inserted by section 3(5) of this Act) insert—
§ "(6B) Employment tribunal procedure regulations may (subject to subsection (6C)) also provide that any act which—
- (a) by virtue of subsection (6) may be done by the person mentioned in subsection ( I )(a) alone, and
- (b) is of a description specified by the regulations for the purposes of this subsection,").
§ On Question, amendment agreed to.
§ [Amendments Nos. 6 and 7 not moved.]
§ Lord Archer of Sandwell moved Amendment No. 8:
Page 4, line 14, at end insert—
§ ("(6C) But regulations under subsection (6B) may not specify—
§ (a) the determination of any proceedings, other than proceedings in which the parties have agreed the terms of the determination or in which the person bringing the proceedings has given notice of the withdrawal of the case, or
§ (b) the carrying-out of pre-hearing reviews in accordance with regulations under section 9(1).'").
§ On Question, amendment agreed to.1021
§ Clause 7 [ACAS arbitration scheme]:
§ Lord Archer of Sandwell moved Amendment No. 9:
§ Page 6, line 25, at end insert—
§ ("( ) A scheme set out in an order under this section may, in relation to an arbitration conducted in accordance with the law of Scotland, make provision—
- (a) that a reference on a preliminary point may be made,Or
- (b) conferring a right of appeal which shall lie,
§ The noble and learned Lord said: My Lords, the purpose of Amendment No. 9 is to make for Scotland a provision which the Bill already makes for England and Wales. The reason the Bill has to provide for that in different terms is that the existing law which is to be amended is different in the two jurisdictions.
§ The purpose to be addressed is to make provision for challenges to arbitration awards. We are addressing the power which the Bill gives to ACAS to prepare a scheme and to the Secretary of State to make an order bringing it into effect. The power which it is proposed to give is a wide one. There may be differences of opinion as to what use should be made of the power and where the balance should lie between the respective advantages of reviewability and finality.
§ I know that some of my friends would like ACAS and the Government to make a wider use of the power than they seem disposed to do. Amendment No. 9 relates not to the use which is to be made of the power, but to the width of the power itself. As presently drafted, the Bill would permit the inclusion of any of the challenges and appeals set out in Sections 67, 68 and 69 of the Arbitration Act. That relates to England and Wales.
§ As my noble friend Lord Haskel explained at Report stage, in England and Wales the Government propose to use Section 68 of the Arbitration Act with such modifications as are necessary for the purpose. They and ACAS propose to include in the scheme a remedy in respect of serious irregularity as defined in that section and such wider remedies as may be required by European law. As I understand it, the Government's intention is that the position should be as nearly identical in England and Wales on the one hand and in Scotland on the other as it is possible to achieve.
§ It was my noble friends Lady Turner and Lord Wedderburn who first alerted us to the problem of jurisdiction in Scotland. My noble friends expressed concern as to which court should exercise that remedial jurisdiction. We are probably agreed that where the complaint relates to procedural errors, the High Court is experienced in dealing with matters of that kind. But where a question of substantial employment law is involved, the court with greater experience of that is the Employment Appeal Tribunal.
§ I was readily persuaded of the validity of my noble friends' argument on that question, as were the Government, and that too can be achieved in England 1022 and Wales by the provisions of the Arbitration Act with the necessary modifications. But in Scotland appeals and challenges on the ground of serious irregularity do not rest on any arbitration Act. There is no Scottish equivalent of the Arbitration Act. Challenges can be provided for in any arbitration scheme without reference to any statutory power.
§ I claim no expertise in the law of Scotland, but my advice is that the court with jurisdiction to hear such challenges would be the Court of Session. There would be no power in an arbitration scheme to confer jurisdiction instead on the Employment Appeal Tribunal. Those challenges therefore which in England and Wales are intended to be heard by the Employment Appeal Tribunal could not be so referred in Scotland in the absence of separate provision in the Bill. That is because there can be no power at common law to invoke a jurisdiction which is set out and defined in statute.
§ Amendment No. 9 seeks to make that specific provision. It will not empower the Government to do anything in Scotland which it could not do in England and Wales by using the Arbitration Act provision, suitably modified. I appreciate that the amendment is moved at a comparatively late stage. There is no secret about the reason. It was when the point raised by my noble friends in relation to the desirability of referring matters of substantive law to the Employment Appeal Tribunal was being considered that the question came to light.
§ Lord Wedderburn of Charlton
My Lords, perhaps my noble and learned friend will allow me to intervene. Can he give us any reference either in my speeches or in the speeches of my noble friends which made a distinction between England and Scotland in the manner he now asserts? Our memory is that we made the proposals that we made in Committee as applying to both jurisdictions alike.
§ Lord Archer of Sandwell
My Lords, I shall try again. My noble friend is absolutely right. None of us mentioned Scotland because at that time the problem of a difference between the two jurisdictions had not occurred to any of us. Perhaps it should have occurred to me, but it did not. My noble friends Lord Wedderburn and Lady Turner raised the question of whether this jurisdiction should be exercised by the High Court or by the Employment Appeal Tribunal.
§ Lord Archer of Sandwell
My Lords, my noble friend Lord McCarthy says "no". But that is precisely what my noble friends were discussing at one stage in our debates.
§ Lord McCarthy
My Lords, I wish the noble and learned Lord would cite such speeches. That is all we are asking of him. When did we say such things?
§ Lord Archer of Sandwell
My Lords, I do not believe that my noble friend Lord McCarthy did. There is no doubt that my noble friend Lady Turner, as she 1023 indicates, raised that point and I thought that my noble friend Lord Wedderburn also did so. If he did not, I withdraw the gratitude I was expressing to him for raising the matter. I am sure that, given the opportunity, I could find the reference. It was in view of what they said that we said, "They are right"; and that is what gave rise to all of this.
My noble friend does not wish to accept the accolade for having raised the matter. I should not have raised it. Perhaps the whole thing was by a side wind. I am not accusing him of committing any offence. I am trying to give him praise which I felt was due to him.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to the noble and learned Lord. Of course we raised the point by raising the issue of jurisdiction of the Employment Appeal Tribunal. From that the noble and learned Lord remembered Scotland. I have to say to him that I always knew that Section 108 of the Arbitration Act excluded Scotland from most of that Act. I shall explain why when I come to make my speech. I had not forgotten Scotland at all.
§ 9 p.m.
§ Lord Archer of Sandwell
My Lords, we are making some progress. First, my noble friend Lord Wedderburn confirms that he raised the point and so, I know, did my noble friend Lady Turner. We have got that far. So I can repeat the gratitude which I was trying to express to my noble friend Lord Wedderburn. Perhaps we can restore some atmosphere of peace.
Of course, no one mentioned Scotland. My noble friend said that it was in his mind all the time. Perhaps it was. I have never concealed the fact that my noble friend's learning on this subject greatly exceeds mine. 1 was not aware of it. Certainly, if I had ever come across Section 108—I have no reason to think that it has ever crossed my path—I had totally forgotten it. So we know how far we have got. I have not accused my noble friend of saying anything improper. In fact, I now accept that his learning on the point greatly exceeds my own.
That takes the argument to the point where I was trying to say that the amendment was moved at a comparatively late stage. It was hoped that the consultation necessary to produce the amendment would have been available at Report stage. But the consultation had not been concluded and so it was not possible to introduce it at Report stage. I was hoping at Report stage at least to give detailed notice of what was intended, but your Lordships will recollect that because of the other business which the House had to consider we were under some pressure to curtail our debates. If it assists, I confess that my explanation was less than explicit. With that mitigation, I hope your Lordships will forgive me for that.
Before I turn to the amendment set down by my noble friends, perhaps I may don an appropriate white sheet. At Report stage (recorded at col. 716 of the Official Report) my noble friend Lord Wedderburn intervened in the course of a speech I was making to refer to subsection (3) of Section 68 of the Arbitration Act. I misunderstood the words to which he was referring. 1024 The only explanation available to me is that I was being more than usually thick. I plead in mitigation that I was simultaneously trying to following my noble friend's intervention and to deal with a different intervention from the noble Baroness, Lady Blatch, about the length of time the debate was likely to take. So I should make it clear for the record that my noble friend's reference was accurate, and I tender an unqualified apology to him.
I am grateful to my noble friends for giving notice of their concern. As I ventured to indicate, the difference between my noble friends on the one hand and the Government and me on the other is not one of substance. It is simply a question of construction and drafting. We are agreed on what we wish to achieve in the Bill. We wish to confer a wide power on the arbitration schemes, to which Clause 7 relates, to provide for appeals and we want that power to be as nearly identical north and south of the Border as is possible to achieve. We may not be in agreement as to the use which would be made of that power when the arbitration schemes come to be made but there is no issue as to how wide the power should be and it is not in issue that it should be co-extensive in England and Scotland. The only issue is whether the Bill as amended in the way I propose achieves that purpose.
My noble friends do not think that it does, or at least they do not think it achieves it elegantly. I can only reply that until now it has not been suggested that the parliamentary draftsman has failed to achieve that result in relation to England and Wales. I am advised by the parliamentary draftsman and Scottish lawyers that, as amended in the way I propose, it will achieve that purpose in Scotland. It is true that the Bill would use different language in relation to the respective jurisdictions and I agree that where possible, if one wishes to make the same provision for two situations, it is better to use the same wording. But there are two factors which determine the form of statutory drafting. One is the result which it is desired to achieve. The other is the existing law which it is intended to amend. If that is different in the two cases, it may be necessary to use different language.
It is probably true that my noble friend's amendment may achieve substantially the same result, but those advising on draftsmanship take the view that in England, where there is an existing code relating to appeals in arbitrations, it is better to use that existing body of law than to reinvent the wheel and to seek to run another provision in parallel with it. My noble friend's amendment would in effect either ignore the existing code in the Arbitration Act or leave it to duplicate the new provision. We are not competing for the Nobel Prize for Literature. We are trying to provide a workable piece of legislation for practitioners and predictability for litigants. That is what my amendment seeks to achieve. I beg to move.
Baroness Turner of Camden moved, as an amendment to Amendment No. 9, Amendment No. 10:
Line 3, leave out ("conducted in accordance with the law of Scotland").
The noble Baroness said: My Lords, Amendments Nos. 10 and 11 seek to amend Amendments Nos. 3 and 9 in the name of my noble and learned friend Lord Archer of Sandwell. In Amendment No. 10 we are seeking to remove the words,
conducted in accordance with the law of Scotland".
and in Amendment No. 11 we are seeking to insert, after line 9,
- ("(i) in arbitrations conducted in accordance with the law of England. the High Court or the Employment Appeal Tribunal, and
- (ii) in arbitrations conducted in accordance with the law of Scotland,").
§ I listened with great interest to what my noble and learned friend Lord Archer of Sandwell had to say in moving his amendment. He knows very well that we do not oppose arbitration. on the contrary, I have frequently commended him for bringing forward the Bill because I know it was intended to make things easier for dismissed employees. However, I and my noble friends believe it is important to get it right, and this, with great respect, we have been trying to do. That is what our amendments seek to do.
§ Incidentally, I should like to take this opportunity to thank the Minister for the patience with which he has dealt with our concerns on this issue and for the letters he has sent to us. That is very much appreciated. He has confirmed that it is the Government's intention to permit challenges on the grounds of material irregularity and that there is also a commitment to provide for any necessary appeal or referral on points of European Community law, subject to the ECJ's ruling in the arbitration cases referred to by the noble and learned Lord, Lord Archer, at Report stage. We are grateful for that assurance. Apparently, the Government believe that this can be done, as it has been explained, for England and Wales by using Part I of the Arbitration Act 1996, appropriately modified. However, as that Act does not apply north of the Border, as the noble and learned Lord, Lord Archer, has said, the Government have agreed that an amendment is required to provide powers which, if necessary, will enable jurisdiction for any appeal in Scotland to be referred to the relevant court.
§ However, in my opinion and in that of my noble friends, that does not really answer the problem as we see it. In fact, we believe that it could create further difficulties since very distinct differences would then exist between procedures on each side of the Border. Our amendment to the amendment seeks to maintain parallel situations in both Scotland and England and Wales. Perhaps I may explain why I believe that is necessary.
§ The noble and learned Lord's amendment allows for appeals in the Court of Session or in the Scottish Employment Appeal Tribunal. An appeal is an appeal is an appeal, as I understand it. Delegated authority cannot alter their nature as appeals. However, that is different from Section 68 of the Arbitration Act allowing for an application to the High Court in England, which would inevitably, I am advised, be more narrow in character than a full appeal.1026
§ The letter from the Minister, which I have already quoted, says that it is intended to allow challenges on the grounds of material irregularity. The Minister's letter caused me to look again at the Arbitration Act and particularly at Section 68. There is no reference there to material irregularity. In fact—and this is confirmed by the noble and learned Lord, Lord Archer—the whole section and the references are about serious irregularity, which I believe is probably something different. Not all material irregularities are serious.
§ But I suppose that serious irregularity is not a surprising term to be used in arbitration Acts since it was originally intended to deal with commercial contracts and not employment disputes. The Minister's letter refers to the power of modification. But would that power extend to material irregularities? Would it be possible to extend modification to modify Section 68 in order to deal with material irregularities?
§ It may then get about that there are fewer opportunities for appeal in England and Wales and that it is best to have one's case heard in Scotland. Would the appellants and their advisers manoeuvre in order to get cases heard in Scotland? If that should transpire to be the situation it would not be very good for the future viability of the scheme. As I have emphasised repeatedly, we want the scheme to be a viable one.
§ Surely, the sensible approach is to treat the scheme, as near as one can, exactly the same on both sides of the Border. That is exactly what our amendment seeks to do. There is then less likelihood of confusion and argument about precisely what is meant by Section 68 of the Arbitration Act. We want the scheme to be successful, but it has much more chance of being so if the procedures both north and south of the Border are not only genuinely parallel but seen to be so. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, I support the amendment in the name of my noble friend Lady Turner. Despite the hour, it seems to me that this is a very important debate for thousands of workers and their employers. Whatever fault lies on any of us—and perhaps we all share it—this is the first occasion when we have been able to debate properly the Government's intentions and with my noble and learned friend Lord Archer what has come to be called the "safety valve" which is necessary against perverse awards.
The Minister was kind enough to write to me on 7th January explaining that the Government saw one virtue in my noble and learned friend's amendment, which is to facilitate references to the European Court of Justice. In so far as it does that, it has our full support.
As regards domestic law there was a choice as to whether or not to apply appellate rights to Scottish courts alone. In our amendment to the main amendment, the central question is why now, at the last hurdle, we are forced to invent in domestic law a special jurisdiction for appeals to the Court of Session and the Employment Appeal Tribunal in Scotland, while leaving in England only applications based on a modified Section 68 of the Arbitration Act? I comment, as my noble friends did, that applications of that sort under 1027 Section 68 are not precisely the same as what is usually called a right of appeal. I shall come back to that point in a moment.
I am very grateful to my noble and learned friend for referring to Section 68 in its full glory. I wholly accept that at that stage of the debate on Report he was under intolerable pressure to get on with a complicated argument which it was not possible then to rehearse in full, although we can do so now.
As I have already said, I did not—I claim no particular merit for this—in one sense forget Section 108 which states that the Arbitration Act for the most part shall not apply to Scotland. However, my noble friends and I felt that it was legitimate to rely on the speeches made (particularly by the Minister because making orders is a matter for the Secretary of State) to ensure that any problem that arose could be adjusted by a modification order under Clause 7(6).
In other words, nothing was said either at Second Reading, in Committee—it certainly was not said by us in Committee—or on Report about there being a need for a special procedure for Scotland because an order of modification for Section 68 was not available. I do not accept that it was not available. I suspect that no Scots lawyers are present, but such advice as I have been able to acquire is that an order could have been made in the same terms. I say "in the same terms" advisedly because if it was not to be made under Section 68 and Clause 7, it could have been made in the order bringing the scheme into force by quill pen, as it were, rather than by reference on a keyboard.
The Minister can use the order authorising the scheme as part of the jurisdiction. That was not excluded from such an order. Either the argument about Scots law is right, which I contest, or, if it is wrong, there is a double possibility for the Minister to make a suitable order.
My noble friend the Minister kindly wrote to me last week saying that today's amendment in the name of my noble and learned friend would, after the modifications to be made in the order,allow the arbitration scheme to work in the same way North and South of the Border".Whatever the argument in Scots law, if that is the objective, why cannot we have in the Bill the same scheme for both jurisdictions? Surely the Minister has an obligation to tell us today exactly why he cannot modify Section 68 and adjust any orders that he is to make when the Bill goes through rather than have what most would see as separate Scots and English provisions. I quite understand that there may be some difficult argument behind the veil, as it were.
However, the matter goes further than that. In another letter to me, on 15th December—I join in the tributes that we pay to the Minister for his powers of keeping up with the correspondence which has quite outgunned us—the Minister spoke of his intent to allow,challenges on the ground of material irregularities".I join my noble friend in asking whether that is still regarded as possible.
1028 Today my noble and learned friend and the Government have struck out on a totally new route. The Minister wrote to me on 7th January saying that after the necessary orders, in the result,the two schemes will he the same".Even allowing for a certain licence in the phraseology, the two schemes will not be the same—and not only for the reasons given by my noble friend Lady Turner, but also because the courts in Scotland will be given a right of appeal whereas in England there is a right to make applications. A right of appeal normally includes at any rate some points of law. If the two things are meant to be the same, perhaps when the Bill goes to another place the wording can be made the same. It is not very elegant to call the same thing by two different words, especially when in law the two are different.
However, there is a deeper cause for concern. This is rather more a personal view. The Government and ACAS—especially ACAS, it seems to me—have gone into this enterprise with a fixed belief—some would say with virtually a closed mind—that they will not permit any appeals on any questions of law in pursuit of what is called "finality". Of course, arbitration awards should in general be final, but not if they are unlawful or ultra vires. I do not think that any lawyer would expect to find finality in an award with an unlawful base. Why should the law control the arbitrator who unfortunately makes a serious irregularity in his procedure, but exercise no control whatever over an award based on a fallacious interpretation of the applicable law which, under the Bill, is to be found on unfair dismissal in Part X of the Employment Rights Act?
The ACAS memorandum drawn up for your Lordships states that awards must be legally enforceable but that there will be no right of appeal on a point of law. I am not alone in finding that bizarre. It is an extremist ambition for "finality" which will give rise to one of the more important and striking own goals to have been scored by a Bill in recent times.
Why do I say that? If it is found that on its face an award does not apply the principles of Part X of the 1996 Act on unfair dismissal in England at any rate and perhaps in Scotland—we do not yet know what the right of appeal will be in Scotland—there will be no room for an appeal on the point of law. Suppose that an arbitrator awards damages, compensation and a right to reinstatement on that basis. What should the employer be advised to do? We all know what advice he should receive if he is serious in fighting the case. Many of these matters tend to be test cases for a large number of workers. He will be advised to go to a place where his legal rights and public functions are protected. He will apply to the High Court for judicial review. The arbitrator does not simply fulfil a private arrangement. It is consensual but it is a public function under a scheme drawn up by statute and is manifestly appropriate for judicial review if the facts so give effect. But neither of the parties has given consent that embraces an award that goes outside Part X on unfair dismissal.
There is therefore every prospect from the Government's perspective that whoever is right—unless "appeal" in Scotland means an appeal in the normal 1029 sense—sooner or later (one cannot say when) there will be an extended series of applications for judicial review in the High Court which will increase rather than decrease the same legalism which its sponsors wish to avoid. I refer to the authoritative study of Professor Linda Dickens, which pointed out a few years ago that what is crucial about legalism is not so much the jurisdiction of the appeal body but the nature of it. That was why we began the long series of debates on the Bill by trying to get the jurisdiction of the EAT extended. That is perhaps now more likely than it was in Committee.
There is a double paradox in the point. In the Arbitration Act, Section 69 permits a limited range of appeals on points of law against arbitral awards with the leave of the High Court and only where the question is one of general public importance. My noble and learned friend referred to Sections 67, 68 and 69. I am sure that they were considered. However, we have never had it explained to us why only Section 68 should be looked at. If one must give up the objections to Section 68, what is wrong with Section 69, which is about the narrowest form of application against an error of law that one can possibly imagine? It is narrower than normal judicial review and it is one that we still say should go to the employment appeal tribunal north and south of the Border.
The progress of this legislation will provide legal archaeologists with research work for years to come. It is hoped that this amendment to the amendment will lead my noble and learned friend and the Government to have another dispassionate look at the clause, especially during the remaining stages of the Bill elsewhere, so as to establish the same basic law north and south of the Border, not one that is built upon hidden arguments as far as the Bill is concerned like some legal Rubik's cube but one that is unambiguous so that the two systems of law are the same on the face of the Bill.
§ Lord McCarthy
My Lords, we should say, yet again, that this is intended to be a friendly amendment. The amendment, which I support, is designed to extend what would be the new subsection (7) proposed by my noble and learned friend, which applies at the moment to Scotland alone, to the whole of the UK. We see that as a halfway house towards solving the difficult problem of combining relatively autonomous arbitration, which is all one can reasonably ask for, with an exceptional ability for external reference, which is what one has the right to expect.
The words of the amendment are not full enough for us, but we will take them tonight except that, unfortunately, as presently stated, they only apply to 8.6 per cent. of the working people of this country. We know in rough terms what they would mean. We know that alleged breaches of European labour law would be dealt with in one way, whereas serious irregularities would be dealt with in another way. We know that, when we reach the position where the Government produce orders, the precise grounds, and the appropriate courts in each case, will be specified therein. At this point in the game, that seems a reasonable way of 1030 dealing with the problem. But we can see no reason why that solution should not be extended across the whole of the UK. But not so. The Bill leaves us with what I regard as the irrelevant, unnecessary, inappropriate intervention of the 1996 Act.
Even at this stage one is bound to ask how that came about. It cannot be that the Government—my noble and learned friend Lord Archer may be different—were not aware that they had to do something about the Arbitration Act 1996, because in the Notes on Clauses before we reached the Floor of the House, they stated:The new Section 212A(6) concerns the application of the Arbitration Act 1996 to arbitrations under the ACAS scheme. All arbitrations in England and Wales are covered by the provisions of the Arbitration Act unless explicitly excluded by statute. The clause provides that nothing in the 1996 Act shall apply to the ACAS scheme unless the Secretary of State in making an order approving the scheme applies the provisions of Part I of that Act".and so on. In other words, one would have had reason to expect, if one read that, that the Government knew that they had to exclude the effect of the Arbitration Act 1996 on the operation of this Bill. Otherwise its presence would undermine the effectiveness of the Act.
The problem was that the Government went on to read back in 80 per cent. of the Act. The Act has 110 sections and four schedules, and covers 35 pages. Of that, 80 per cent., or 33 pages, still applies. Thus, we have been forced, because of the way the Government have conducted the debate, to look at the Arbitration Act 1996.
But I say that, if the provisions of Part I of the Act were applied to the day-to-day application of industrial arbitration, they would ruin the arbitration process. One would have to define the agreement, the procedure and the immunities. One would have to appoint experts. One would have a right to legal representation. One would have provisional awards, and a whole series of other things. Of course the Government will say that they would not apply all that to every arbitration under the arbitration scheme, so why is it there in the first place?
The Government may say that this is all very well, but the amendment about which we are talking does not deal with all of the provisions of Part I of the Act, it only deals directly with Section 68. But I ask noble Lords to look at Section 68, and to think how appropriate that would be in an arbitration scheme run by ACAS. There are three things to say at this point. I have to say the first to my noble friend the Minister, because I do not believe that he has yet taken it on board. The first thing is that Section 68 does not just refer to "serious irregularity". It does not just say that. It is a "serious irregularity" which causes "substantial injustice". That is what it says, and that is what the Minister will have to put in the order: "serious irregularity which causes substantial injustice". It then goes on to give nine different grounds upon which there could be an appeal, as it were, under the system: unfairness, partiality, breach of procedure, exceeding powers, a failure to deal with all issues raised, certain uncertain or ambiguous words, fraud, public policy and any admitted irregularity.
Anyone concerned with industrial relations arbitration will tell you that if these criteria were ever put in a statute or an order, it would ruin most arbitrations. Most 1031 arbitrations do not deal with all the issues raised. The parties raise very funny issues, many of which they do not want dealt with; they merely want to air them. You have to know which ones they want dealt with. Most arbitrators deliberately, intentionally, use uncertain, ambiguous words. They mean one thing to one side and another thing to the other. That is what arbitration is all about. Moreover, anyone who did not like the result of arbitration could allege that it was unfair and partial.
I am prepared to bet that, if the Government do not get rid of Section 68 and if our friends in ACAS take any notice of Section 68, it will be inoperable.
Of course if one is to have a sensible system of arbitration with some kind of external review we do need a list of sensible grounds. If the arbitration is unreasonable, irrational or arbitrary that might well constitute sensible, reasonable grounds, but they do not exist in Section 68. Therefore it is important for the Government to begin by getting rid of Section 68 and accepting our amendments.
I realise that that will not happen tonight. However, fortunately for the Government and for us, the Bill is only beginning its passage through Parliament. Therefore, before it reaches Second Reading and Committee in another place, there is plenty of time for ACAS and the Government to pull out their fingers and produce a draft of the scheme. If we could see a draft, we could work backwards from what the scheme suggests to what should be on the face of the Bill.
Therefore my first question to the Minister is: when can we see a draft of the scheme? Our argument has always been that something sensible must be on the face of the Bill. The further away that is from the Arbitration Act 1996 the better off we shall be.
However, if the Government persist I wish to ask a second and simpler question. Is there a precedent anywhere in the country for a Bill which produces the same orders on a different statutory base, based on geography? I take it that we shall not have different orders making different provisions, but if we are to, for God's sake tell us now because we shall ask what the difference is.
Thirdly, if the Government continue to go down the road of Section 68, do they really intend that serious irregularities qualified in the way I have specified should cover all nine grounds of that section? Surely not, because, as I say, if it did, it would make arbitration impossible.
Finally, when the Government agree, can the principles of Clause 7 be put on the face of the Bill? That may involve the dissolution of our amendment and that of my noble and learned friend Lord Archer of Sandwell, but that would be well enough. What we have argued for all along, and what this House has argued for over and over again with the previous government, is that the principles of Bills should be put on the face of them and that everything should not be left to secondary legislation. When the Government find out what the principles are, will they put them on the face of the Bill? I support Amendment No. 10.
§ Lord Meston
My Lords, I briefly interrupt this dialogue, if that is what it is, to say that I followed 1032 entirely the arguments of the noble Lord, Lord Wedderburn, except in relation to one point. He suggested that the arbitration scheme would be used in test cases. I cannot imagine anybody advising an employer or an employee, in what was known to be a test case, to use the arbitration procedure in the first instance. I imagine that the advice would be to go straight to the tribunal for an authoritative statement of the law and then the normal appeal procedures would apply.
The only other point is that I wish to question the expression used by the noble and learned Lord, Lord Archer of Sandwell, in his opening remarks when he referred to—I hope I noted it correctly—such wider remedies as may be required by European law. I suspect that such further remedies as may be required by European law will not widen significantly the ambit of appeal. They will apply in only very limited circumstances. But if he knows or thinks otherwise, perhaps he will indicate that to the House because it may be a straw at which we could all be clutching at this late hour.
§ Lord Gladwin of Clee
My Lords, I make a brief intervention as an erstwhile practitioner. As has been said many times before in debating this piece of legislation, on this side of the House we are very anxious that the arbitration scheme should work. From my experience of industrial tribunals, I know that for an employee who has been unfairly dismissed to be reinstated as a result of an industrial tribunal award does not happen any more. Therefore, the only way in which to deal with an unfairly dismissed employee is by internal arbitration. Therefore, this ACAS scheme is welcome. I am only sorry that we have got ourselves into this tangle.
I look forward to the response of my noble friend Lord Haskel to the question posed by my noble friends Lord McCarthy and Lord Wedderburn. But I ask him this evening to give us an assurance that as far as is humanly possible, the arbitration scheme will work in the same way north and south of the Border and that if experience shows that it is not working in that way because of some of the issues raised by my noble friends, the Government will use the powers in the Bill to revise the scheme. It would be disastrous, as my noble friend Lady Turner said, if there were a difference between Scotland and England. It would damage the scheme and trade unionists would not use the internal scheme if it is clear that it is flawed.
Secondly, I seek an assurance from the Minister that there will be the closest possible consultation with the users; that is, the representatives of the employers and trades unions. On a number of occasions I have heard my noble and learned friend Lord Archer refer to consultation with the president. I welcome that, particularly as we have a new president in England and Wales. But the people who know about such matters are the employers' representatives and the trades unions. Therefore, I seek an assurance that there will continue to be the closest possible consultation with the users so that when the scheme is published—I hope sincerely 1033 that it will be published very soon—we know that it is with the assent of the people who will use the arbitration scheme.
§ Lord Haskel
My Lords, the Government fully support the initiative of my noble and learned friend in tabling this amendment. It may be convenient for the House if I refer also to the amendments tabled by my noble friends, Lady Turner, Lord Wedderburn and Lord McCarthy. The Government have considered carefully the points raised by my noble friends Lord Wedderburn and Lord McCarthy, and I am grateful to them for contacting me well in advance of the debate; indeed, they have referred to the considerable correspondence that has taken place.
As my noble and learned friend Lord Archer made clear, his amendment is a straightforward and technical one to ensure that the proposed ACAS scheme for the arbitration of unfair dismissal disputes—here I can give an assurance to my noble friend Lord Gladwin—will work in a similar way both north and south of the Border, subject of course to the background of the different legal systems.
Arbitration law is different north and south of the Border. In England and Wales there is a codified approach to arbitration in the form of the Arbitration Act 1996, but in Scotland that is not so. Therefore, the Government propose to build upon the existing legislative framework to provide an arbitration alternative which will be available throughout Great Britain. The scheme will work in the same way both north and south of the Border, subject, as I said, to the different legal systems. It is important to emphasise that, effectively, the individual substantive rights under the scheme will be the same throughout Great Britain.
To make the same provision for England and Wales would be unnecessary. Anything that the amendment would enable us to do for Scotland can already be done in respect of England and Wales by using the Secretary of State's power to apply and modify the provisions of the Arbitration Act 1996. It is never desirable to duplicate legislation. The method chosen in the Bill is to use the provisions of the Arbitration Act with appropriate modifications.
As regards the residual right of appeal in Scotland. I should point out that there will be no appeal in Scotland on a point of law unless one is written into the scheme. Any challenge under the scheme as it applies to Scotland will be strictly limited to those specified in the scheme. The Government consider that the approach proposed by my noble and learned friend's amendment is the most effective way to ensure that the two schemes are as similar on those points as is achievable.
I turn now to the point made by my noble friend Lady Turner: namely, that people in England will seek to have their arbitration heard in Scotland. In response, I can only say that the scheme will provide that cases which would have been heard by a tribunal in England and Wales will be heard by arbitrators under the law of 1034 England and Wales. Similarly, cases which would have been heard in Scotland by a tribunal will be heard by arbitrators under the law of Scotland.
My noble friend Lady Turner and other noble Lords raised the question of appeal or challenge and referred to material irregularity. We have all agreed that there should be some form of safety valve to cover the situation where an individual has suffered an injustice because of the way that the arbitrator has conducted the arbitration. That may be because the arbitrator has not acted fairly or impartially or because he has not dealt with the issues placed before him. Alternatively, the arbitrator may not have conducted the procedures in accordance with what was agreed. Those examples are included in the types of serious irregularity contained in Section 68 of the Arbitration Act 1996. As noble Lords are aware, the Government intend to use their power to apply this part of the Act, modified as appropriate, in England and Wales, and a parallel provision will be written into the scheme for Scotland.
§ 9.45 p.m.
§ Lord Wedderburn of Charlton
My Lords, before my noble friend leaves this point, I understand the situations he describes and what the parties can do in terms of making an application for serious irregularity, but what does he say a party should do if he finds that the arbitrator has made his award based upon principles which have little to do with unfair dismissal?
§ Lord Haskel
My Lords, I do not know whether that is a question one can answer at this stage. We are dealing here with material irregularity and serious irregularity. I am not sure whether the point my noble friend has made comes under that category. We cannot apply the Arbitration Act serious irregularity provisions north of the Border. Serious irregularity is specifically defined in the Act. However, we can specify what we regard to be material irregularities for the Scottish scheme by listing those which we consider appropriate from the list in the Act. We do not propose to include any other irregularities which might be called material. Our intention is therefore limited; namely, to ensure that the two schemes will be as similar as the laws permit. The powers of the Bill would extend to material irregularity.
§ Lord McCarthy
My Lords, the provision is based on Section 68 of the 1996 Act which mentions serious irregularity but then mentions another qualification. Is the Minister producing some additional ground or does he accept all the grounds in Section 68? Are we to have the provision exactly as it is in Section 68?
§ Lord Haskel
My Lords, I can repeat only what my noble and learned friend Lord Archer has said: the scheme has not yet been prepared. When the ACAS scheme is prepared, everything will be quite clear. 1035 I cannot give any undertaking when the ACAS scheme will be prepared. The responsibility for preparing the scheme lies with ACAS.
§ Lord Gladwin of Clee
My Lords, will the scheme be prepared before the Commons reaches either Second Reading or the Committee stage?
§ Lord Haskel
My Lords, I am not sure. I can give no undertaking that the scheme will be drafted until the Bill has completed its passage.
§ Baroness Turner of Camden
My Lords, is the Minister saying that the scheme will not be available until after the Bill has gone through all its stages and is on the statute book? Is that the situation?
§ Lord Haskel
My Lords, that is the situation. Turning to the arbitration scheme, the essential point about the scheme is that entry into it is voluntary. Both parties have agreed to submit their dispute to an arbitrator and to abide by the arbitrator's decision. They may prefer the finality which it offers, or they may seek a speedier resolution, or they may prefer greater privacy, but most importantly they will be aware that there is no appeal on points of law. Finality is an aspect of the scheme which not only the Government and ACAS—here I give an assurance to my noble friend Lord Gladwin—but also the TUC and others consider to be vital. It is clearly important that the provisions of the scheme should be different from the provisions of tribunals.
I turn to the questions from my noble friend Lord McCarthy. He asked when the scheme can be seen. I have already responded to that point. Regarding any precedent based on geography, I shall write to the noble Lord on that matter. As to whether all the measures will be included in the scheme, I am afraid that we shall have to see what the scheme provides. Can the principles be put on the face of the Bill? We think that we are putting the principles on the face of the Bill.
I do not wish to draw out the discussion further at this late hour. I conclude by saying that the Government support the amendment of my noble and learned friend Lord Archer but cannot support that of my noble friends Lord Wedderburn, Lady Turner and Lord McCarthy.
§ Baroness Turner of Camden
My Lords, perhaps I may respond to the debate on the amendment and on the amendment to the amendment. I am sorry that the Minister does not feel able to accept the amendment drafted by myself and my noble friends. I have listened carefully to the reasons given for the lack of support for it. I was hoping that, before the Bill reached another place, the ACAS scheme would be available and therefore it would be possible for the other place to consider what we have said here in conjunction with the ACAS scheme. I believe that that would have been easier for everyone. However, we have just been told that the ACAS scheme will not be available until the Bill has been through all its stages and is on the statute book. I regret to hear that.
1036 However, in the light of what has been said, in particular by my noble friends Lord McCarthy and Lord Wedderburn—they have both had extensive experience in this area; my noble friend Lord McCarthy is an arbitrator—that, when the Bill reaches another place and is in Committee there, some attention will be paid to what we have said in this House.
I believe that what we have said is quite important. From the standpoint of the future appellant, it is perhaps very important. As we have all indicated, we wanted to ensure that without any doubt the scheme on both sides of the border was exactly parallel. With respect, I do not think that the amendment by my noble and learned friend Lord Archer achieves that, but our amendment would have done. I regret that the amendment has not found greater favour with my noble and learned friend and the Minister. However, in the circumstances it is not our intention this evening to press the amendment. I beg leave to withdraw the amendment.
§ Lord Archer of Sandwell
My Lords, I must have made a complete pig's ear of introducing the debate. I totally failed to make clear what the amendment was about. From the speeches of all my noble friends and—I say it with pain—the noble Lord, Meston, who is usually on the ball in these matters, one would have thought that what we were proposing was that in England and Wales the methods of challenging an award were to be based on Section 68 whereas in Scotland they were to embrace everything included in the word "appeal". That simply is not what was being proposed.
There are two quite separate issues. First, what should be the extent of the power to make arbitration schemes conferred by this Bill? Secondly, and quite separately, what use should be made of that power when the schemes come to be made? The extent of the power is intended to be in the widest terms—just as wide in England and Wales as it is in Scotland. That is the intention; and that is what my amendment—and I think possibly my noble friends' amendment—would achieve. What use is to be made of that power is a quite separate matter and I fully understand the feelings of my noble friends about it. I understand their anxieties.
We have had the debate before. I do not propose to extend this debate by going into the merits of that matter tonight. But that is not what we are debating. That is not what we are talking about writing into the Bill; and that has nothing to do with either my noble friends' amendment or mine. The question as regards the Bill is how we achieve the widest power, however that power is to be used.
I have said it before; in fact I believe I have said it twice; and I have now said it again. "If I say it three times, it is true." If I have still failed to make the matter clear, there is nothing more that I can do about it.
Perhaps I may deal briefly with two matters that arose. The first relates to the modification provisions referred to by my noble friend Lord Wedderburn. The modification provision, in Clause 7(6) of the Bill enables the Secretary of State to modify Part I of the Arbitration Act. The Arbitration Act does not apply in Scotland. That is why the procedure of the modification provision cannot be used to get that result.
1037 The second matter relates to references to Europe. My noble friend Lord Wedderburn rather gave the impression that the advantage of the amendment moved by my noble friend was that it enabled references to be made to Europe, implying that the present scheme of the Act, as amended by my amendment, would not have that effect. Of course reference can be made to Europe whichever channel we go down.
Perhaps I may clarify the question raised by the noble Lord, Lord Meston. If I referred to "such wider appeals as were required by Europe", I meant "such further appeals"; they may not be much wider. However, we do not yet know, because the European Court is still considering the matter. So I cannot take the question any further.
There would be no point in spinning out the debate any further. I apologise if I did not make the matter clear at the outset. Perhaps in future debates I shall say it three times when I introduce such matters.
§ Amendment No. 10, as an amendment to Amendment No. 9, by leave, withdrawn.
§ [Amendment No. 11, as an amendment to Amendment No. 9, not moved.]
§ On Question, Amendment No. 9 agreed to.
§ Clause 13 [Internal appeal procedures and unfair dismissal awards]:
Lord Meston moved Amendment No. 12:
Page II, line 8, at end insert ("but in no case shall the award be reduced if the employer's procedures fail to arrange for all internal appeals to he heard and determined, and for the complainant to be informed of the result, before the end of two months beginning with the effective date of termination").
§ The noble Lord said: My Lords, this is a better version of an amendment which it was not realistically possible to move and debate at Report stage. In Committee, Clause 13 was much improved by addition of the requirement for an employer to have notified the employee properly before the employer can seek the benefit of the new section to be inserted in the principal Act which allows for reduction of a compensatory award. This amendment is concerned with the circumstances in which it could be said that the dismissed employee has failed to appeal under internal procedures.
§ In some more sophisticated organisations there is more than one level of appeal. So an employee may be caught by the new provision if he or she appeals only to one level and does not then go on to exercise a right of further appeal internally.
§ Similarly, in some organisations the appeal procedure is more time-consuming and more formal than in others. Some internal appeals (including the Civil Service Appeal Board) are not completed until after expiry of the three months from dismissal allowed for applications to the tribunal. Employees can be caught out because they do not realise that the time limit is three months starting from the dismissal, or that operating an internal 1038 appeal after dismissal does not stop the clock. They can find that the internal appeal process has not been completed before it is too late to apply to the tribunal within the primary limitation period.
§ It is only the well-advised employee, following dismissal, who gives notice of internal appeal at the same time as launching tribunal proceedings to ensure that he or she is not caught out by the statutory time limit if the internal appeal is unsuccessful. Those without advice or without good advice can miss the boat by using up their three months in pursuing internal appeals, or they may apply straight to the tribunal, believing that appealing internally to unsympathetic senior management will not be worth while.
§ The amendment seeks to encourage the hearing and the determination of internal appeals within a reasonable time. That is desirable in itself for several reasons: first, because internal appeals can and sometimes do hold up tribunal proceedings; secondly, because evidence given at a properly conducted internal appeal is usually much fresher in everyone's minds than at a tribunal hearing months or even years later; thirdly, because the outcome of the appeal may remove the need for a tribunal hearing altogether or limit its use. It is also desirable, in the context of the new clause and the power to discount. So long as there is a relatively short period of three months to start tribunal proceedings—and now that is to be coupled with the risk of a discount—the internal appeal or appeals procedure should be prompt and should be completed in two months. That gives the employee a margin of a further month to consider whether to take the matter further, without having to depend on the discretion of the tribunal to allow an application out of time.
§ I should say that I am grateful to the noble Lord, Lord Wedderburn, for drawing my attention to the decision of the employment appeal tribunal in 1995 in the case of W.A. Goold (Pearmak) Limited v. McConnell. The decision was that it is an implied term of a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance. That case concerned grievance procedures during the employment rather than appeal procedures after employment has been terminated. However, I am sure that an analogous implied term exists. In a sense, what I seek to do in this amendment is to put it on a limited statutory basis, with specific reference to the tribunal time limits. I beg to move.
§ 10 p.m.
§ Lord Wedderburn of Charlton
My Lords, with the leave of the House, I merely wish to add a sentence to what the noble Lord, Lord Meston, said in relation to the decision in 1995 on the employment appeal tribunal. Some might feel that the amendment added an unbearable burden for the employer in providing grievance procedures. It was in that respect that I ventured to draw the noble Lord's attention to the decision because we already start from a base where the employment appeal tribunal has decided that it is an implied term of the contract of employment that the employer should give proper grievance procedures to 1039 the employee. In a sense, that is not hostile to the amendment. On the contrary, it shows that the amendment is evolutionary rather than what might be felt by the Minister to be unfortunately revolutionary.
§ Lord Archer of Sandwell
My Lords, perhaps I may at the outset express my gratitude to the noble Lord, Lord Meston, for his self-denying ordinance at Report stage in not moving the amendment which then stood in his name. He took that course because we were being pressed to conclude our debates on the Bill so that the House could proceed with other business.
I have much sympathy with the point that the noble Lord seeks to make. There is indeed a danger that some employers may drag their feet over the internal appeals procedure. It is important that internal appeals should be dealt with as soon after the initial cause of complaint as possible. In any event, it should be before the dispute has had time to fester and before any possibility of reinstatement is passed.
I appreciate the danger that an employee who is using the internal procedure may lose sight of the need to lodge his appeal with the tribunal within the time limit. Of course, an employee is fully entitled to submit his application to the tribunal, as the noble Lord said, within the time limit, notwithstanding that the internal appeal is proceeding. The necessary arrangements may be made to ensure that the tribunal hearing is not listed prematurely. But the noble Lord is right, the employee may not be aware of that.
However, as I think the noble Lord recognises, the amendment which he proposes does not really address the problem. The question of whether the award is to be reduced arises only if the employee appeals to the tribunal, and does so within the time limit. Conversely, the question of reduction in compensation will arise only if the employee fails to appeal by way of internal procedure.
Having said that, I believe that the noble Lord disclosed a real problem. The question then arises as to how it should be addressed. It is difficult, by legislation, to ensure that people know their rights. The best way to achieve that is to encourage them to seek appropriate advice. As we all know, advice is available from ACAS, from CABs, from trade unions and from law centres. I hope that anything which can be done to bring that to the attention of litigants will be done whether the litigants are employees or perhaps employers who do not have the advantage of a personnel department.
Beyond that, can something be done to impose statutory time limits on internal dismissal procedures? I am grateful for the reference made by my noble friend Lord Wedderburn and to which he was kind enough to refer me. But I fear that if we are looking for a statutory answer, the reply is not in this Bill. The relationship between internal procedures and statutory appeals is a complicated one in any event. I understand that the Government take the view that any changes would require detailed consultation and consideration. I appreciate the reasons for that, although my noble friend Lord Haskel may have something to say on the matter in a moment.
1040 Your Lordships may recollect that at Second Reading I indicated that while I would be happy to consider amendments I would feel inhibited in introducing major revisions in the absence of appropriate consultation. But I join the noble Lord, Lord Meston, in suggesting that the Government may consider initiating such consultations. If my noble friend Lord Haskel feels able to assist us on that, I am sure we shall all be grateful. That is the best I can do.
§ Lord Haskel
My Lords, I repeat the gratitude expressed by my noble and learned friend Lord Archer to the noble Lord. Lord Meston, for the manner in which he dealt with his amendments on Report. We are concerned that the amendment of the noble Lord, Lord Meston, would discourage parties from using the fair procedure. That is why we feel initially that we are unable to support the amendment. Our intention is that Clause 13 should encourage parties to disputes to make use of internal appeal procedures. It seems likely that it would take more than two months to conclude them. We firmly believe that, where possible, parties should resolve their disputes voluntarily between themselves rather than by recourse to a third party or to a tribunal.
Like my noble and learned friend Lord Archer, I understand the intention behind the amendment and indeed we are sympathetic to it. The Government acknowledge that there might be a problem if an employee thought that the time limit started running only once an internal procedure had been completed. The information in guidance provided by the DTI, the employment tribunal service and ACAS makes it clear that the time limit starts running from the effective date of the termination. Although we wish to encourage parties to use internal appeal procedures, an employee who is concerned about falling foul of the time limit can always make an application to the tribunal and ask that it be stayed until the outcome of the appeal. That is perfectly normal practice and tribunals are well used to dealing with such requests. That puts a certain amount of power in the hands of the employee.
My noble and learned friend Lord Archer suggested that the Government may be reluctant to make complicated changes to time limits without extensive consultation. He is right. That is because the issue is more complex than might at first appear. While it is normally relatively simple to determine the effective date of termination, determining the date on which an internal procedure is concluded is by no means straightforward. For example, there might be disputes as to whether the internal appeal had been properly commenced or taken forward. It is also not clear what the status of dismissed employees would be during the appeal. Would they remain as employees, in effect on suspension; and if so, would they be entitled to pay? The Government would need to address those questions and consult with employers and employees before considering whether it would be feasible to make any changes to the well established way in which the time limit works.
1041 I would therefore urge the noble Lord, Lord Meston, to withdraw his amendment, but I can assure him that the Government have taken note of the very important point he makes.
§ Lord Meston
My Lords, I am grateful for the response I have had and I again thank the noble Lord, Lord Wedderburn, for his assistance, although I cannot help feeling that he may have handed me a somewhat two edged sword. However, he is right in suggesting elegantly that what I sought to do was evolutionary rather than revolutionary.
I do not for a moment accept that the proposal in the amendment would impose a serious burden on employers. Nor do I accept that it would in any way discourage the use of internal appeals. It is designed, if it is designed to do anything, to encourage employers to provide internal appeals and to make sure that everyone gets on with it. It is certainly not intended to impose, and I do not accept for a moment that it has the effect of imposing, a statutory time limit on internal procedures or a major revision of the substantive time limit in the principal Act. All it says is that, if the employer is to have the benefit of seeking a reduction of the compensatory award as provided under the Bill, he can have that benefit only if he has ensured that the internal appeal is completed within a reasonable time limit of two months. I do not accept that it is in any way impossible or difficult to have the appeal dealt with within that time limit, particularly if the employee himself is required to make his application to the tribunal within three months.
I accept the point made by the noble Lord, Lord Haskel, that the whole question of effective date of termination can be complicated. But if one is looking at this in its context of the award of compensation at the end of the hearing, surely by then at least one would hope that it would be perfectly clear when the effective date of termination was. If it was not clear by then, I would suggest that the tribunal or arbitrator had failed to focus on the factual issues in the case.
I am grateful for the indications given by the Government and would not dream of pressing the amendment at this late stage. However, I do hope that further thought can be given to the point before the Bill completes its parliamentary passage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Minor and consequential amendments]:
Lord Archer of Sandwell moved Amendment No. 13:
Page 13. line 42, leave out second ("or").
§ The noble and learned Lord said: My Lords, with this amendment it may be convenient to discuss Amendments Nos. 14 to 20, 22 and 23. It would certainly be in the interests of expedition.
§ These are technical amendments but they are significant nonetheless. They are necessary to ensure that the provisions of the Bill relating to the definition of qualified lawyers are consistent with the definition in other statutes. Your Lordships will recollect that advice from a qualified lawyer is a necessary condition for 1042 exercising certain rights under the Bill. The Courts and Legal Services Act 1990 altered the position in England and Wales by creating two new categories of authorised advocate and authorised litigator and allowed for the possibility of authorised bodies other than the Bar Council and Law Society to grant rights of audience in the court and rights to conduct litigation.
§ This has not mattered in practice until recently because the only bodies authorised to grant such rights to their members have been the Bar Council and the Law Society. The only authorised advocates or litigators have been barristers or solicitors. But I understand that several weeks ago my noble and learned friend the Lord Chancellor and senior judges approved an application from the Institute of Legal Executives (ILEX) to become an authorised body for the purpose of granting their members rights of audience before certain courts and tribunals. I am sure that noble Lords will agree that this new class of authorised advocates should be able to provide advice on compromise agreements. It is therefore necessary for the provisions relating to compromise agreements in the Bill to be amended accordingly. My amendment provides that authorised advocates or authorised litigators, for the purpose of the Courts and Legal Services Act, will qualify as independent advisers. I beg to move.
§ On Question, amendment agreed to.
§ 10.15 p.m.
§ Lord Archer of Sandwell moved Amendments Nos. 14 to 20:
§ Page 13, line 43, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
§ Page 14, line 40, leave out second ("or").
§ Page 14, line 41, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
§ Page 16, line 17, leave out second ("or").
§ Page 16, line 18, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
§ Page 17, line 11, leave out second ("or").
§ Page 17, line 12, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
§ On Question, amendments agreed to.
§ Lord Archer of Sandwell moved Amendment No. 21:
§ Page 17. line 37, leave out from ("alone),") to end of line 38 and insert ("for the words front ", in such circumstances" to "tribunal may" substitute "any act which is required or authorised by the regulations to he done by an employment tribunal and is of a description specified by the regulations for the purposes of this subsection may".").
§ On Question, amendment agreed to.1043
§ Lord Archer of Sandwell moved Amendments Nos. 22 and 23:
§ Page 19, line 42, leave out second ("or").
§ Page 19, line 43, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
§ On Question, amendments agreed to. Schedule 2 [Repeals]:
§ Lord Archer of Sandwell moved Amendment No. 24:
§ Page 20, line 20, column 3, at end insert—
|("Section 4(3)(f), apart from the word "and".")|
§ On Question, amendment agreed to.
§ In the Title:
Lord Archer of Sandwell moved Amendment No. 25:
Line 7, leave out ("avoiding double recovery in") and insert ("about").
§ The noble and learned Lord said: My Lords, this amendment seeks to change the Long Title of the Bill to reflect changes made to the Bill at Report stage. I am available if your Lordships wish to press me further on the reasons. I beg to move.
§ On Question, amendment agreed to. An amendment (privilege) made.
§ Lord Archer of Sandwell
My Lords, I beg to move that this Bill do now pass.
There is much to be said in some circumstances for introducing a Bill in your Lordships' House. The other place has much to occupy its time and attention. Its debates frequently concern broad issues of policy and while they can certainly on occasions address matters of detail with a formidable degree of expertise, there are some proposals which, if they have to await the attention of a committee in another place, may suffer some delay before they reach the statute book.
A Bill that does not aspire to change the course of history but simply to oil the existing wheels may come first before your Lordships' House and be assured of a careful scrutiny by those whose experience and expertise should enable the other place to feel confidence. Little is likely to have slipped through the net by oversight.
Even before it was presented, this Bill was the outcome of extensive consultation. In your Lordships' House it received a general welcome, but it did not escape controversy over some of the detail and indeed that happened tonight. The controversy arose because in this world it is not always possible in any decision to achieve a balance which affords all the advantages and none of the price tags.
Inevitably, we are dealing with a proper balance between conflicting objectives, both within your Lordships' House and among those outside with interests to promote and views to express. There were those who placed a greater value on some objectives 1044 than others. The political process consists largely not of reconciling objectives if they cannot be reconciled, but in achieving a suitable balance and trying to ensure that no point of view is dismissed without proper consideration. I believe that we have achieved that. I am grateful to all noble Lords who have participated in our debates even though there may have been moments when my gratitude was tempered depending on the particular subject matter we were discussing. I am grateful also to all of your Lordships who have discussed these matters with me outside the Chamber.
I pay particular tribute to my noble friend Lord Haskel for his patience with all of us who might have made his life easier had we been less insistent on our own views. My noble friend mediated between us and the Government. He conveyed our concerns to his fellow Ministers and, where he could not satisfy everyone, I believe that no one was left with a feeling that my noble friend had failed to address his mind to their arguments or failed to explain why the Government were taking the position which was adopted. Perhaps I may add my personal thanks to my noble friend's officials who spent long periods with me, explaining what options were open and mediating between the various groups who were writing to us.
I hope that the many associations outside Parliament which wrote to me will forgive me that I was not able to avail myself of all of their suggestions. That does not reduce my gratitude for the considered advice which they tendered.
Employment law is never static. There may well be future changes to meet some of the points raised in our debates which we were not able to incorporate in the Bill. I am in the privileged position of being consulted in advance about changes in procedural regulations affecting tribunals. I shall await with interest some of the regulations following the powers which we have been discussing in this Bill.
We have not resolved every question which exercises practitioners in this area, but I believe that our efforts were worth while and that they may benefit not only practitioners, not only those who administer tribunals, but many employers and employees who may never even learn of our debates. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Lord Archer of Sandwell.)
§ Lord Wedderburn of Charlton
My Lords, on behalf of some of my noble friends I should like to thank, first, the Minister for his patience and, secondly, my noble and learned friend Lord Archer. Even when he was wrong, he maintained a stout and firm bat against all the bowling that we could bring to bear.
There are some good things in this Bill—I should say that there are a lot of good things in it because from our Benches we have tended only to criticise it. Indeed, where the Bill is good, it is very good, but where it is bad, it is very, very bad indeed.
§ Lord Haskel
My Lords, I should like to congratulate my noble and learned friend Lord Archer of Sandwell 1045 on bringing forward this Employment Rights (Dispute Resolution) Bill, and to thank him for his considerable efforts during the progress of the Bill. He has been a tower of strength, as we must all acknowledge.
As I have emphasised on a number of occasions, we shall continue to maintain a consultative approach when we come to prepare the implementing regulations. The ACAS arbitration scheme has attracted a great deal of interest and, I detect, some concern. As your Lordships know, the ACAS Council is a tripartite body, comprising representatives of employers, employees and 1046 independents, independent of government. Its members have a wealth of experience in the area of arbitration. Nevertheless, I am sure that they will have heard the points made in the debates and will take note of them in drawing up their proposals for a scheme.
The Government trust that the Bill will gain the support that it deserves from your Lordships' House. I am grateful to all noble Lords who have taken part in our debates.
§ On Question, Bill passed, and sent to the Commons. House adjourned at twenty-three minutes past ten o'clock.