HL Deb 27 June 2002 vol 636 cc1522-42

4.22 p.m.

Lord McIntosh of Haringey

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Employment Bill, has consented to place her prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Lord McIntosh of Haringey

moved Amendment No. 1: Page 32, line 20, at end insert— () Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person's ability to pay when considering the making of an award against him under such regulations. The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 2 and 4. My noble friend Lord Wedderburn tabled an amendment on Report restoring tribunals' discretion to consider a party's ability to pay when making a costs award, which had, in effect, been removed by the decision in the Kovacs case. We agreed in principle with my noble friend and gave an undertaking to table a government amendment to enable the regulations to provide that a tribunal has the discretion to take into account a party's ability to pay.

The amendments we have tabled provide that tribunal regulations may include provision authorising a tribunal to take into account ability to pay when considering making a costs award in the employment tribunal or the Employment Appeal Tribunal, or an award in respect of preparation time. The detail will of course be set out in the regulations, on which there will be full consultation. We are grateful to my noble friend Lord Wedderburn for drawing the matter to our attention. I beg to move.

Baroness Turner of Camden

My Lords, in the absence of my noble friend Lord Wedderburn, who unfortunately cannot be here today—he has a hospital appointment—I thank the Minister for introducing the amendment. As he rightly said, the issue was originally raised by my noble friend Lord Wedderburn and we were given an assurance that the Government would table amendments to meet the points we made. It is deeply gratifying that that has been done, and I would like to place on the record my thanks to the Government.

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 2: Page 33, line 2, at end insert— () Regulations under subsection ( I ) may include provision authorising an employment tribunal to have regard to a person's ability to pay when considering the making of an order against him under such regulations. On Question, amendment agreed to.

Baroness Turner of Camden

moved Amendment No. 3: Page 33, line 8, at end insert— ()Payments of the kind mentioned in subsection (1) do not include any sums in respect of— () time spent in the normal course of the execution of their duties by a party's directors, executives, managers or employees or by a person under a contract for services with a party, or () advice given to, or work done for, a party by a legal adviser, whether employed by him or not. The noble Baroness said: My Lords, the amendment is tabled in the names of my noble friends Lord Wedderburn of Charlton and Lord McCarthy. I have already explained that my noble friend Lord Wedderburn has a hospital appointment. My noble friend Lord McCarthy regrets that he is unable to be present as he is presiding at an arbitration case.

I return to the matter of preparation payments as provided for in Clause 22(2). The Minister may say that it has been thoroughly debated in previous stages, and I agree, but I remain disappointed that the Government have not addressed the main concerns of myself and my noble friends.

The amendment was drafted by my noble friend Lord Wedderburn. To put it simply, we believe that the possibility of facing heavy expenses if the case is lost intimidates a number of would-be employment tribunal claimants, including those who may have a well-founded case. Evidence exists—to which we referred earlier—provided by NACAB, among others, that solicitors acting for employers already attempt to intimidate claimants by threatening that there will be large, probably unaffordable costs, should the claim fail.

If an employer is able to claim preparation expenses, which could be high, that could act as another obstacle to a would-be claimant. The Law Society has pointed out that the position of the parties is hardly equal. The claimant may prepare his case in the evenings on his kitchen table. It may be an onerous task, as the Minister has said, but not one likely to involve the kind of expenses an employer could claim. He could claim for the time of his senior directors, the members of his personnel department, administrative and specialist staff, and overtime pay.

It is to be noted that Judge John Prophet, president of the employment tribunals, has on a number of occasions voiced concern about this provision in the Bill. It will be recalled that on Report I followed his recommendation and tabled an amendment based on applying the Litigants in Person (Costs and Expenses) Act 1975. The Government did not find that acceptable. Indeed, when the Minister was asked if the Government intended Clause 22(2) to apply to directors, managers and employees dealing with the matter in the normal course of their duties, his response was that where companies are represented and incur costs, they can claim such expenses under costs.

Judge Prophet has pointed out in correspondence I have recently seen that that is misleading since costs can be awarded only where there is legal representation. The question remains as to whether companies will be able to claim preparation time for directors, managers and employees who are attending to cases as part of their normal paid duties or who are provided with paid advice by outside advisers or consultants.

The amendment strives for some equality between the parties. Obviously, the employer could make a much greater claim than the claimant for preparation time and expenses if the Bill remains unamended. My noble friends and I have been concerned about the issue, which is why we are raising it this final time at Third Reading, particularly as the president of the employment tribunals still shares our view. I hope for a favourable response from the Minister. I beg to move.

Lord McIntosh of Haringey

My Lords, in response to points made by noble friend Lady Turner and other noble Lords in Grand Committee, we tabled on Report an amendment to provide that a tribunal may not make an award for both costs and preparation time. That is a significant amendment that meets the key concern about the effects of the new provision for preparation time.

This amendment seeks to go yet further. Its first part seeks to exclude an award of preparation time in respect of work on the tribunal case which is within the normal duties of an employer or its employees and contractors. The amendment's effect would be to exclude employers almost entirely from preparation time awards. I understand that it is aimed at companies that employ staff to deal with personnel matters, but it could be argued that it would be within the normal duties of the manager of a small newsagent, for example, who pays the wages and hires and fires staff to deal with tribunal applications. However, our disagreement with the amendment is more fundamental than the way it is worded.

Employers have to accept that in running a business they may at some point become involved in a tribunal complaint, and even if that complaint is not upheld by the tribunal they must bear the costs of defending the case, because to have a system of loser pays the winner's costs could have a serious detrimental effect on applicants in particular. That is part and parcel of running a business or company. But why should employers be expected, as a matter of course, to bear the costs and disruption of defending complaints which have been brought or conducted vexatiously or which had no reasonable hope of ever succeeding?

Preparation time awards will be awarded only in very limited circumstances—hopeless, vexatious, unreasonable cases. Those cases are exceptional and we do not accept that defending them should be considered part of the normal execution of duties.

The second part of the amendment proposes that preparation time payments should not include work done by legal advisers, including in-house legal advisers. Although we are aware that the power in new Section 13A(1) could conceivably cover time spent on a case by anyone, including outside lawyers, Sections 13 and 13A are clearly drafted on the basis that preparation time awards and costs awards will cover different matters; in particular, there is a prohibition on a tribunal making both kinds of awards to a party, as I have already pointed out.

We consider that the appropriate place for the detail on how preparation time awards are to be assessed is in the regulations. When we draw up and consult on the regulations, we will consider how best to give full effect to the prohibition on receiving both a costs award and a preparation time award. We intend that assessment of preparation time awards will be by reference to matters which are not recoverable in costs awards.

I understand that these amendments are motivated by concern that applicants may be deterred from bringing cases or may suffer disproportionately as a result of preparation time. Given what I have said about the exceptional nature of preparation time awards, I do not believe that they will. We know that tribunals use their costs powers with great care, but my noble friend Lady Turner and other noble Lords have raised concerns about the impact of Clause 22 and we have acted on them.

We brought forward on Report an amendment to provide that a party may claim costs or preparation time, but not both. We have just restored in Amendments Nos. 1, 2 and 4 the tribunal's discretion to take into account a party's ability to pay when determining whether to award costs or to set the level of costs, and we have included preparation time.

We have said that we will set out in regulations guidelines on how preparation time should be calculated to ensure that awards are reasonable and proportionate to the case. We shall consult very carefully with the tribunal judiciary to establish what guidelines they will find helpful and not over-prescriptive. In addition, tribunals will have the discretion to determine what is reasonable in each case. We have said that we will include consideration of a cap on preparation time or fixed amounts for elements of the award.

In addition, we have given an undertaking to address intimidation by representatives through better guidance on how the costs regime operates, to make it clear that the circumstances under which costs can be awarded are very limited.

I think that we have demonstrated our willingness to address the points of concern raised my noble friends Lady Turner, Lord Wedderburn and Lord McCarthy about the impact of costs and preparation time on applicants. The integrity and efficiency of the tribunal system relies upon a costs regime which is both fair and effective. I believe that that will be achieved through the Bill and the supporting regulations. For those reasons, I cannot accept the amendment.

4.30 p.m.

Baroness Turner of Camden

My Lords, I thank my noble friend on the Front Bench for that response. It is quite true that the Government have moved on the whole issue of preparation time since we first raised it. The reason why we have been so keen to advance the case for it once again at Third Reading is that we have striven to achieve what we perceive as a measure of equality between the parties. We felt that preparation time would be more likely to involve the employer in being able to claim a large payment rather than the employee.

However, I am gratified to learn that regulations are to be drafted which seem to take on board many of the points that have been made in the course of our debates. Furthermore, the employment tribunals will then have that guidance on which to base their decisions. In the circumstances, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [Employment Appeal Tribunal]:

Lord McIntosh of Haringey

moved Amendment No. 4: Page 33, line 14, at end insert— () Rules under subsection (1) may include provision authorising the Appeal Tribunal to have regard to a person's ability to pay when considering the making of an award against him under such rules. The noble Lord said: My Lords, I spoke to this amendment when I discussed Amendments Nos. 1 and 2. I beg to move.

On Question, amendment agreed to.

Clause 28 [Pre-hearing reviews]:

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)

moved Amendment No. 5: Page 35, line 10, at end insert— (1) Section 9 of the Employment Tribunals Act 1996 (c. 17) (pre-hearing reviews) is amended as follows. The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 6 and 7.

On Report, my noble friend Lord Wedderburn proposed an amendment which would have had the effect of restricting striking out at a pre-hearing review to the circumstances set out in rules 4, 7 and 15 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. I undertook to see whether we could table an amendment to Clause 28 at Third Reading which would encapsulate the spirit of my noble friend's amendment.

I believe that the amendment will do so by providing that a tribunal may not strike out at a pre-hearing review on a ground which does not apply outside such a review. The grounds for striking out proceedings under the 2001 regulations are contained in rules 4,7 and 15, and include failure to comply with an order or direction imposed by the tribunal or when the originating application or notice of appearance—or anything in it—is scandalous, misconceived or vexatious. The amendment does not specifically mention the rules, not least because future revisions may lead to renumbering.

As I said on Report, we have no intention of widening the grounds in the regulations on which tribunals may currently strike claims out, although we may consult on whether to amend rule 4 of the procedure rules to take into account the new powers that the presidents will have to issue practice directions, so that tribunals could strike out cases for serious failure to comply with them. The only change resulting from this clause will be that it may be possible to strike out at the pre-hearing review stage. This amendment will ensure that the grounds for striking out may not be wider than those applicable at other stages. I beg to move.

Baroness Turner of Camden

My Lords, I thank my noble friend on the Front Bench for moving the amendment. As he has rightly pointed out, this issue was raised sharply by my noble friend Lord Wedderburn during previous stages of the Bill. We were concerned about the provisions in the Bill, which seemed to confer wide powers to strike out. This has now been dealt with by the amendment before the House. The Government are to be applauded for taking note of what has been said previously on this matter.

On Question, amendment agreed to.

Lord Sainsbury of Turville

moved Amendments Nos. 6 and 7: Page 35, line 11, leave out "section 9(1) of the Employment Tribunals Act 1996 (c.17)" and insert "subsection (1) Page 35, line 15, at end insert— () Alter subsection (2) there is inserted— (2A) Regulations under subsection (1)(b), so far as relating to striking out, may not provide for striking out on a ground which does not apply outside a pre-hearing review. On Question, amendments agreed to.

Clause 37 [Use of alternative documents to give particulars]:

Lord Sainsbury of Turville

moved Amendment No. 8: Page 41, line 32, leave out "of" and insert "on which The noble Lord said: My Lords, in moving Amendment No. 8, I shall speak also to Amendments Nos. 9 to 14. These are minor but necessary technical amendments to Clause 37 which will allow employers to use a letter of engagement or a contract of employment to satisfy the requirement to provide employees with a written statement of employment particulars.

A written statement must give a dale by reference to which it operates. Logically, any alternative document fulfilling the function of a written statement must also give such a date. The current text of Clause 37 refers to, the date of the document". However, there may be uncertainty about the date of any particular contract of employment. Taken together, Amendments Nos. 8 to 13 therefore clarify the position by making the relevant date the one on which the document was given to the employee. With that made clear, new Section 7B(2) of the Employment Rights Act 1996 performs no useful function. Amendment No. 14 therefore removes it. I beg to move.

On Question, amendment agreed to.

Lord Sainsbury of Turville

moved Amendments Nos. 9 to 14: Page 41, line 33, after "document" insert "is given to the employee Page 41, line 34, leave out "of" and insert "on which Page 41, line 35, after "applies" insert "is given to the employee Page 41, line 37, leave out first "of" and insert "on which Page 41, line 38, after "applies" insert "is given to the employee Page 42, leave out lines 7 and 8. On Question, amendments agreed to.

Baroness Miller of Hendon

moved Amendment No. 15: Before Clause 41, insert the following new clause— "POWER TO CONFER RIGHTS ON INDIVIDUALS: AMENDMENT In section 23(5) of the Employment Relations Act 1999 (c. 26) (power to confer rights on individuals), the words "or otherwise" are omitted. The noble Baroness said: My Lords, I regret having to table this amendment a third time. I say that not by way of an apology but to explain that I was compelled to do so by the Government's obdurate refusal to accept the deletion of two words from the Employment Relations Act 1999.

The amendment's positioning has changed. Originally it related to Schedule 7, which deals with minor and consequential amendments. The Minister is always polite across the Dispatch Box but when dealing with this amendment the noble Lord was patronising towards me. He said once that the amendment started with a bang and ended with a whimper. On another occasion, he gave numerous examples involving someone named Doreen. I would not mind except that, unusually for me, I doubted myself and wondered whether I had got it wrong. I sought the opinion of the eminent and learned noble Lords, Lord Ackner and Lord Brightman. They told me that this was not a minor matter and that the amendment was important but needed to be somewhere else—so I changed its position.

This wholly harmless amendment would delete what I originally believed to be tautology but the Government's obstinacy, coupled with the Minister's specious and meaningless arguments, convinces me that there is something more to it and that we must get rid of those unnecessary words.

Section 23 of the Employment Relations Act 1999 gives the Secretary of State the power to confer certain rights on individuals. Subsection (5) states: An order under this section may make provision in such way as the Secretary of State thinks lit, whether by amending Acts or instruments or otherwise". I will return to the words in such way as the Secretary of State thinks fit but "or otherwise" must be removed.

On 4th December 2001, I asked the Minister what those words meant. He frankly admitted that he did not know. He subsequently wrote to me: The use of 'or otherwise' was intended to ensure that an order under section 23 could also apply to rights to individuals by means of a free-standing provision rather than by an amendment". The words rather than by an amendment mean that the Government admit that "or otherwise" is in addition to an Act or a statutory instrument. What is a "free-standing provision"? My advisers and I scoured the text books but were unable to find any reference to a constitutional device named a freestanding provision. It is abundantly clear that the Government are trying to introduce a new device that will enable them to circumvent Parliament by use of a Ministerial decree.

My advisers and I looked for a similar provision elsewhere but could find none. Some time ago, I asked the Library: it was unable to find anything similar. Only today I received a letter from the senior Library clerk: We have searched the Lexis database of the statutes but have not found any further examples of the phraseology used in section 23(5) of the Employment Relations Act 1999". In previous debates, I have repeatedly asked the Minister to explain "a free-standing provision" but all he wrote was that, this was simply a way to give the Secretary of State the flexibility to extend rights … in a way that seemed best from a drafting point of view". He repeated the flexibility argument in all the debates but did not explain how the "or otherwise" powers would be exercised—despite my suggesting fanciful ways, such as press advertisements or handing out leaflets in Whitehall.

On Report, the Minister admitted that the wording enables an order made under Section 23 to extend rights to individuals by means of a free-standing provision"— again that meaningless phrase— in an instrument … rather than by an amendment to existing primary or secondary legislation". What kind of instrument? I know only of statutory instruments. That comment confirms my suspicions about a ministerial decree. Fortunately, we have not yet reached the stage of allowing ourselves to be governed that way. The Minister also said on Report: It is merely a question of how an order under Section 23 is drafted". Not so. The Minister admitted that "or otherwise" is an addition to the power to make a statutory instrument. The plain meaning of the words also make that absolutely clear. The Minister said that the words, do not mean that the Secretary of State can … extend rights without making an order". If that is so, what is the "or otherwise" process? The Minister claimed also that, an affirmative order is required, as is stated in the legislation".".—[Official Report, 18/6/2002; cols. 702–703.] On the contrary. Section 23(5) provides for rights to be altered in three ways—a new Act of Parliament; an instrument, which I readily agree requires parliamentary sanction; "or otherwise", for which there is no qualification or precedent.

As to the Minister's claim that the Secretary of State cannot extend rights without making an order, I remind your Lordships that Section 23(5) of the 1999 Act commences: An order under this section may make provision in such a way as the Secretary of State thinks fit". I ask the Minister to convince me and your Lordships—so far, he has dismally failed—by explaining how that power would be exercised, if not by a new Act or instrument.

The Minister insists on treating the issue as trivial. In Committee he called it a "whimper." On Report, he condescendingly said that he would make a final attempt to explain the point to me. The Minister has totally missed the point. At the risk of continuing to bore the noble Lord, I tell him that the power to alter people's rights is not in issue but how those alterations should be made.

An Act of Parliament would be unobjectionable, as would a statutory instrument but "or otherwise"—importing as it does anything that the Secretary of State thinks fit—is not acceptable. It is a dangerous precedent that, despite the Minister's protestations, introduces the possibility of the Government bypassing Parliament. That provision should be removed. To quote the Minister, it is really quite simple. I beg to move.

4.45 p.m.

Lord Ackner

My Lords, I congratulate the noble Baroness on rigidly adhering to the principle that she enunciated. This is not a small and technical matter, as the Minister said; it is an important issue that gives rise to the question why on earth the words "or otherwise" were used. They must serve some purpose.

What does the phrase "free-standing" mean? I have heard of free range and of free-standing in relation to the law on fixtures and fittings but what does it mean here? The Minister has never indicated. Perhaps it means free-standing in the sense that the Minister or Government can operate by decree—for example, by placing a notice in The Times saying that as from the first of the month the following will be affected by the Act. There is nothing to stop that being done.

The Minister said that the affirmative resolution procedure would apply to anything done under "or otherwise". But, if one looks at the Act, that opinion is very difficult to sustain because Clause 50 on page 58 deals solely with orders and regulations.

Clause 50(2) provides that, Any power of the Secretary of State to make orders or regulations under this Act is exercisable by statutory instrument", and it goes on to state that the affirmative procedure must be adhered to. But that is in regard to orders or regulations. We are not concerned with that, otherwise there would be no need to put the offending words in.

There is a very heavy onus on a government that have expressly taken power to make alterations in the only ways provided for—that is, by amending an Act of Parliament or by secondary legislation—to justify the addition of "or otherwise". I suggest that this is either a draftsman's aberration or, alternatively, that the Government want to ensure that they have every conceivable power to do what they wish. In the debate on Report, the Minister said in terms, "This does not give us any greater power". One then asks "Well, why have it? What are the words designed to do? To what are they directed?".

This raises an important matter. I rely on the views of my noble and learned friend Lord Brightman, whose wisdom on drafting knows no equal in this House or perhaps anywhere else. He said that this amendment is important and should be put appropriately in the Bill and not in Schedule 7. I hope that the Minister understands that this is not a small technical matter on which to patronise the noble Baroness. It raises an important, fundamental matter. It is for the Minister to justify what, on the face of it, looks like unlimited power.

Lord Brightman

My Lords, in supporting the amendment I intend to take a practical approach to the problem. I imagine myself as a judge faced with a case involving Section 23(5) of the 1999 Act. I read Section 25 and I learn that the Secretary of State has power to make an order granting specified rights to specified individuals in certain circumstances. I am told by the Section that the order may be made, in such a way as the Secretary of State thinks fit, whether by amending Acts or instruments or otherwise". So the Secretary of State has three options: he may use an amending Act; he may use a statutory instrument; or he may make the order "otherwise"—that is, in some other unspecified way. I shall assume in my imaginary case that the Secretary of State decides not to make the order by primary or secondary legislation but by an advertisement in The Times. My job as the judge in the imaginary case before me will he to decide whether an advertisement in The Times is enough.

A decision on that point will immediately confront me with the task of deciding what "or otherwise" means. I cannot avoid that responsibility. I must decide what "or otherwise" means. As a judge, I must try to reach a sensible decision, a sensible conclusion. The only sensible conclusion that I can think of is that "or otherwise" means "or some other reasonable means". I decide the case before me on that basis, hoping that I shall not be rapped over the knuckles by an appellate court.

The question now arises whether your Lordships are satisfied with an enactment which is so drafted that it is left to the discretion of the Secretary of State to decide what is a reasonable vehicle to use in order to change the law. In my view, such an enactment imposes a quite unacceptable burden on the judiciary and a quite unacceptable inroad into the democratic procedures of this country and should be rejected by your Lordships.

How is the judiciary to decide what are reasonable methods of changing the law other than the standard methods which are known to all of us? Flow is an employer to know whether the Secretary of State has made a valid order under the words "or otherwise"? How is the individual, who has purportedly had rights conferred on him by the Secretary of State, to know whether it is, after all, just an illusion because the Secretary of State has decided to use a device under Section 23 which some court decides is unreasonable?

Is this a precedent which those of your Lordships who today sit on the Government Benches would like to see in the hands of the Opposition if they one day sit on those Benches and form another government? To put the matter shortly, the words "or otherwise" are two words too far.

Lord Sainsbury of Turville

My Lords, as the noble Baroness indicated, we have debated this amendment on earlier occasions. I plead guilty to the fact that I did not think that this was a major issue. I apologise if I took it in a frivolous way. I have now looked at the matter in depth because clearly it is a matter of great concern to the noble Baroness.

Let me try to explain the nature of the situation. Looking again at the points she has made, I hope that I have identified the reasons for her belief that the term gives new and objectionable powers to the Secretary of State to by-pass Parliament. I can see how subsection (5) of Section 23 of the Employment Rights Act could be read in a way to suggest that it confers novel powers.

However, it is still my view that it does no such thing. Section 23 of the Employment Relations Act 1999 empowers the Secretary of State to extend the coverage of statutory employment protection rights by order, and not by any other means, to individuals not currently covered by them. Subsection (1) lists the legislation containing the rights in relation to which the power can be exercised. Subsection (5) permits the Secretary of State to make an affirmative order that extends any of the rights conferred by this legislation either by amending Acts and/or instruments or otherwise.

It is stated in Section 23(2) and again at the beginning of subsection (5) itself, that if the Secretary of State wishes to exercise the powers in this section to extend employment rights she can only do so by making an order. Section 23(2) states that, The Secretary of State may by order make provision which has the effect of conferring any such right on individuals who are of a specified description". I believe that the noble Baroness must be reading "or otherwise" as if those words overrode this requirement, so enabling the powers in the section to be used without parliamentary scrutiny. If that were the position, it would clearly be objectionable in the way the noble Baroness has indicated, but I hope that she will see that that is not the case. The phrase, whether by amending Acts or instruments or otherwise in Section 23 sets out how the Secretary of State may make an order. It is not a list of the types of legislation she may use. It means in layman's terms, and terms which I can understand, whether by amending Acts or amending instruments, or by a new order that does neither of these things. It does not mean whether by amending Acts or by making instruments or by some other means.

The noble Baroness may say that it is ambiguous but, taken with the rest of Section 23, it clearly has the meaning which I have given it. Furthermore, any order under Section 23 must be affirmative. Section 42 of the 1999 Act states that, no order or regulations shall be made under sections 3,17,19 or 23 unless a draft has been laid before, and approved by resolution of, both Houses of Parliament". As I sought to explain in our earlier debates on this amendment, its meaning is simply that, when making an order under the section, the Secretary of State can include provisions in it that extend employment rights, but do not amend any Act or instrument in order to do so. That is all that is meant by using the words "freestanding" although I accept that my use of that expression seems to have been confusing rather than enlightening.

Perhaps I may also explain that this is not the only use of the words "or otherwise" in legislation. I give two other uses of those words in other legislation. The first is Section 116 of the Finance Act 1991. That relates to regulations which provide that a charge to stamp duty does not arise or is reduced in certain circumstances. Section 116 provides that, regulations may make any provision in such way as the Treasury thinks fit (whether by amending enactments or otherwise)". Section 111 of the Local Government Finance Act 1992 relates to changing the reference in legislation to rates or rateable value of property. Section 111 states that where there is a reference to rates or rateable value, regulations may provide that that reference shall instead by such as is prescribed in such a way as the Secretary of State thinks fit, whether by amending enactments or otherwise". So this is not a unique use of the phrase "or otherwise".

Nevertheless, the noble and learned Lords, Lord Ackner and Lord Brightman, have made very strong statements that they believe that this is not appropriate. Therefore, we have to take account of that very strong advice. We have to decide whether to do something which the noble and learned Lords, with all their experience, believe to be wrong in the circumstances and to balance that against the ability to have an instrument which stands on its own and, in those circumstances, gives slightly greater freedom to the Secretary of State.

In view of the very strong pleas by both noble and learned Lords that they do not believe the Government's measure is appropriate, on balance we are prepared to accept the amendment.

5 p.m.

Baroness Blatch

My Lords, before the noble Lord sits down, perhaps I may say that the Minister has been extremely ungracious. The noble and learned Lords, Lord Ackner and Lord Brightman, are highly respected Members of this House. But it is my noble friend Lady Miller who brought this matter before the House and the two noble and learned Lords. It is highly and extremely ungracious of the Minister not to accept the work of my noble friend, which deserves some credit at this stage of Bill.

Lord Sainsbury of Turville

My Lords, as the House will know, I have the very greatest respect for the noble Baroness, Lady Miller. She brought this point to the House and that was a very important thing. However, the point I was seeking to make, and which I stand by very clearly, is that we still believe that this is a perfectly proper situation, but given the very great experience of the two noble and learned Lords, we are prepared to accept the amendment. That is an appropriate way to make our decision although of course I accept that it was the noble Baroness who brought this matter to the House.

Baroness Miller of Hendon

My Lords, I thank the Minister for the gracious way in which he accepted my amendment. I also thank the noble and learned Lords, Lord Ackner and Lord Brightman, both of whom played such a large part in persuading the Minister to accept my amendment.

On Question, amendment agreed to.

Clause 48 [Work-focused interviews fir partners]:

Baroness Turner of Camden

moved Amendment No. 16: Page 56, line 19, at end insert— () The purpose of the interview shall be to advise the partner of available opportunities for employment or training (or both). () Reduction of benefit under this section shall not be applied should the partner deem the employment or training on offer to be unsuitable in the light of his training, background and general circumstances. The noble Baroness said: My Lords, the issue of work-focused interviews for the partners of claimants has been discussed both in Committee and at Report. I was not convinced by the arguments of the Front Bench on both occasions against the amendments that we put forward. We were advised by my noble friend Lady Hollis of' Heigham, the Minister for Work and Pensions, who dealt with this issue for the Government at Report stage—I am glad to welcome her to the Front Bench again today—that the purpose of the provision in the Bill is entirely benign. The intention is to ensure that the partners of claimants are fully advised as to employment and training opportunities available. There will be no compulsion on them to accept the opportunities held out to them. The sanction of loss of benefit only applies to their failure to attend for interviews. She asked herself whether such interviews should he made compulsory. She answered that herself by saying that if they were voluntary people do not turn up. When people thought that interviews were compulsory and a condition of benefit, they then turned up.

I believe that there may be another reason why people do not turn up. They believe that going down "the Social", which is how some of them describe it, may involve them in accepting jobs that they do not want or feel are unsuitable for them. I made it clear on both occasions when I spoke on this clause that I do not like it at all. The noble Baroness did not persuade me that it was a good provision to appear in an Employment Bill. I share the view of the noble Lords who spoke and said that the clause is really more appropriate for a social security Bill because it is a social security matter rather than an employment one.

In response to my query as to why a claimant should lose benefit because her partner—the claimant is often likely to be a woman—will not go down to the office for interview, my noble friend said that the benefit being paid was a family benefit although the Bill does make specific reference to the benefit continuing to be payable to the claimant. But if it is a family benefit I do not believe that it makes much difference to my case. A family benefit, and a reduction to it, is normally likely to impact more on the woman in a couple than on the man. Why should she suffer simply because he will not attend for interview?

Not all couples live in harmony. Many women stay with unsatisfactory partners for numerous reasons, as we all know. Out of sheer wilfulness, he may refuse to go for an interview. My amendment seeks to deal with one of the reasons why a partner may not be willing to go for interview. In her response at Report stage, the noble Baroness said that the sanction of benefit reduction only applies if partners do not respond to the requirement to go for interview. In other words, if employment is offered and refused, there will he no sanction. The sanction is lifted the moment the partner enters the office.

My noble friend says that the intention is entirely benign. I am sure that, so far as she is concerned, that is absolutely right, and certainly while she and her colleagues are in office I am sure that we can expect the legislation to be applied in a compassionate and benign way. But there is nothing on the face of the Bill to say so, and future governments may interpret legislation entirely differently. There is a case therefore for writing this important provision on to the face of the Bill. I hope that the Government will be prepared to look with more favour on the proposed wording. I beg to move.

Lord Razzall

My Lords, this clause—originally Clause 49, now Clause 48—caused considerable aggravation and concern to Members on all sides of the House. I do not think that we ought to let pass the concerns expressed both on the Minister's side and from these Benches as to the effect of the provision.

I strongly support the comments of the noble Baroness, Lady Turner. If the Government are prepared to say that the question of sanction is removed as soon the individual to whom the provision applies has actually turned up for an interview, then a large number of the concerns expressed on all sides will be removed.

We all accept, as the Minister says, that such interviews are often very beneficial for those who take part in them. All the evidence produced by the Minister in Committee and on Report demonstrates that they are beneficial in getting back into the workplace people who might not otherwise find that possible. However, the concern on all sides relates to the next stage; namely, that if it turns out that the job is not appropriate and is not wanted by the individual, that person then loses benefit.

If the Minister indicates that the noble Baroness, Lady Turner, is right when she says that the potential loss of benefit should stop at the moment when the individual turns up for the work-related interview, many of our concerns will be removed. I should be grateful for that undertaking.

5.15 p.m.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)

My Lords, on reading the amendment I was genuinely baffled. My noble friend has long-standing experience in social security. When I joined the House and we were in opposition, she guided me through many of the traps of social security legislation. Indeed, we were busy setting traps for the then government to fall into—and occasionally we succeeded.

I am baffled because the amendment is narrower and less generous than what the Government intend and the second part of it seeks to avert that which cannot happen and is therefore redundant. I take it that my noble friend seeks assurances from me rather than a full slogging-out of the issues behind work-focused interviews.

The amendment seeks, first, to narrow the scope of the interview to a meeting about available employment and training opportunities; secondly, it seeks to avert a reduction in benefit where the partner deems the employment or training on offer to be unsuitable in the light of his or her training, background and general circumstances.

To take the first part of the amendment, the work-focused interview is designed to find out about the individual—his or her level of skills and experience—and to explore the broad range of information and support available to help them look for work should they wish to do so. The interview will also include advice about possible benefits, about best-buy packages, which our research shows are very important to lone parents trying to calculate whether they should or should not go into work. It possibly covers childcare issues and support services for a carer who would like to go into work for a short period but does not know what the resources are, and that applies to their partners as well. That is what the interview is for. It is not simply to discuss suitable jobs or training opportunities.

My noble friend's amendment would turn the interview into something much narrower and much more akin to the fortnightly intervention meeting—the sign-on interview— attended by those claiming JSA. My reading of the interview is more generous and more comprehensive than that. My noble friend is turning the interview into the very thing that she has criticised on previous occasions.

The second part of the amendment seeks to protect the benefit of the claimant and his or her partner from a reduction should the partner deem the available employment or the training on offer to be unsuitable. But as my noble friend recognises, no one will be required to accept available employment or training as a result of the interview. Regardless of whether or not it is available, all the partner has to do is to take part in the interview. If he or she does this, no question of a reduction in benefit arises. I am happy to give the assurances sought by the Liberal Democrat Benches that at the point someone comes in to be interviewed any question of sanction is then dropped. That will follow three efforts, including, if necessary, a home visit, but certainly personal contact to make sure that people understand the situation.

The push of my noble friend's amendment seems to be that a partner should be required to look for and consider suitable work or training and that, if it is available, it should be taken up; and that the only grounds on which the sanction should not apply is if the work or training is unsuitable. In that sense, the amendment goes far further that the Government think appropriate or sensible and is well beyond the scope of this provision. My noble friend seeks in the second part of the amendment to avert that which cannot happen.

I am profoundly surprised by my noble friend's amendment. If I were seeking to do what she seeks, she would surely deplore it. In the first part of the amendment, she is narrowing the supportive, wide-ranging interview effectively into a JSA sign-on, and in the second part she is assuming that people will be required to work when they will not. The first part is less generous; the second part is simply not relevant. I hope that with that response again on the record in Hansard my noble friend feels that she has the commitment that she was seeking and will feel able to withdraw her amendment.

Baroness Turner of Camden

My Lords, I thank my noble friend for that response. In view of what she said, my hope is that when regulations are written in respect of the Bill, as I am sure they will be, or guidance is given, this will be made absolutely clear to the officials who are charged with responsibility for applying the Bill's provisions.

My noble friend is right. I was seeking confirmation of what she has just said; namely, that there will not be pressure on people to accept work or training, or indeed any other recommendations, and that the sanction will be applied only if they fail to show up for interview; and that the possibility of a sanction will disappear as soon as the partner goes through the door of the benefit office. In the light of that, I am willing to withdraw the amendment.

Baroness Hollis of Heigham

My Lords, my noble friend uses the phrase, "goes through the door of the benefit office". It is clear that we expect the person to engage in the interview in a sensible way, not just go through the door, come out again and say, "I've signed in". But with that qualification, so that there is no misunderstanding, my noble friend is right.

Baroness Turner of Camden

My Lords, in view of that response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Statutory dispute resolution procedures]:

Baroness Gibson of Market Rasen

moved Amendment No. 17: Page 64, line 29, at end insert— () In the case of bullying, the appeal may be instituted by either the employee, the manager or the employer. The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 18. I have re-submitted these amendments because of the helpful way in which my noble friend the Minister responded to them on Report. He recognised the importance of the issue of bullying at work, about which many people are worried. As I said on Report, that was evident in the large number of people—more than 90—who attended a meeting in June at the House.

I know that the Government believe that there are problems with the definition of bullying at work but I recall that many years ago, when we first discussed racial and sexual issues involving harassment and discrimination, it was said then that the definition of those phrases would be the difficulty. I believe that the difficulty could be overcome.

I do not wish to go into the arguments that I put forward at previous stages of the Bill. I do not see the point of reiterating the remarks that I made on Report and at Second Reading, when I detailed what happened to those who are bullied. I pointed out the detrimental effect it has on them and often on their families and friends. That has been well documented, as have the effects of a culture and ethos of bullying at a workplace.

On Report, the Minister signalled that between Report and today more thought would be given to the issue of bullying. I look forward to hearing any new thinking on the matter. I beg to move.

Lord Lea of Crondall

My Lords, I support my noble friend, who spoke to Amendments Nos. 17 and 18. We tabled the amendments to follow up the debate on Report on llth June at cols. 173 to 178. The position was clarified when the Minister stated that: Employees can raise allegations of bullying under grievance procedures", and that, employers can use their disciplinary procedures against employees who are accused of bullying".—[Official Report, 11/6/ 02; col. 176.] For many of us, that clarification was a step forward. The question that now arises and which it would be very timely for the Minister to shed further light on, is how the matter will be made clear when the regulations are enacted. We are now at the stage of the Bill when our minds turn to the small print.

How the House will be kept up to date on the enactment of the regulations is one thing but there is a wider audience on this issue. Everyone in the employment relationship will have a wider interest, including employers and trade unions, in how they will be familiarised with the implications of this Bill. The relationship between this legislation, these codes and other procedures is a good illustration of it and one which the Minister may wish to comment on. We have made quite a step forward if the Minister confirms that our understanding of this is correct.

Lord McIntosh of Haringey

My Lords, these are the same amendments that we saw on Report on the treatment of cases which involve bullying. They seek to allow the employer or manager to initiate an appeal against a step two decision under the standard statutory procedures for both dismissal and discipline and grievances in cases involving bullying. The current procedures only permit an employee to request an appeal.

I said on Report that I would meet my noble friends Lady Gibson and Lord Lea to discuss those concerns. We had that meeting this morning which I thought was very helpful and productive. We all agreed that bullying represents a major source of workplace stress and, in its extreme forms, can threaten the health of individuals. The solution I propose involves that point.

Most organisations are aware of this issue to some degree but a significant number have no policies to deal with it. These organisations need greater help and support. I am pleased to announce that as part of the Government's ongoing strategy to address workplace bullying, we intend to set up an advisory group to the Health and Safety Executive and the Department of Trade and Industry to advise on the establishment of a new management standard for anti-bullying policies in the workplace. It will be one of a range of management standards which the Health and Safety Executive will draw up.

We plan to invite well-known experts in the field to act as members of the advisory group. Once the management standard is set and adopted, it will be applied by the HSE when advising organisations about good practice in dealing with bullying. They have a highly respected team of officers in the field who are well placed to deal with this issue.

We believe that this is a sounder basis for progress than invoking statutory procedures for bullying. We see real difficulties in that approach. There is the problem of assigning a precise definition to bullying, which my noble friend Lady Gibson acknowledged. It is unclear what the term "manager" might mean. That term is not used anywhere else in the statutory procedures. It is intrinsically difficult to assign a right to appeal to third parties; voluntary procedures do not provide for this in general and we have based the statutory procedures on existing practices.

We recognise that managers or others accused of bullying might want to have their voice heard. I believe that the statutory procedures allow for this. Managers are also employees. They would be entitled to use the statutory procedures in exactly the same way as their junior colleagues. Aggrieved managers could raise a separate grievance with their employee about the way they have been treated by their employer's consideration of another employee's complaint about bullying.

That approach makes more sense and avoids introducing unusual steps into the procedures. I make it clear that the Government understand the point which my noble friend Lady Gibson made very effectively on Report. There is a growing awareness of bullying as a workplace issue. There is already excellent guidance and information on bullying, which is published by the HSE and ACAS. The existing ACAS code on disciplinary and grievance procedures discusses the special circumstances which may apply in cases of bullying.

My noble friends Lady Gibson and Lord Lea asked how we can increase awareness of these codes and potential remedies. They put forward a valid analogy going back to when the issues of racial and sexual harassment were first raised around 20 years ago. We shall be doing more to raise awareness of good practice and entitlements.

The DTI in close collaboration with ACAS, the Small Business Service and others, intends to launch a major initiative to publicise the Bill, giving full advance notice and guidance to interested parties before the various provisions, especially the statutory procedures, come into effect.

ACAS will need to revise its code and guidance to reflect changes brought about in the Bill with the introduction of statutory minimum procedures. The HSE would need to publicise the existence of the proposed management standard when adopted.

I hope I have assured my noble friends that awareness of the Bill and its implications for bullying will be effectively made public and advertised. I hope that on the basis of what I have said, the amendment will be withdrawn.

5.30 p.m.

Baroness Gibson of Market Rasen

My Lords, I thank my noble friend the Minister for that answer, which I am pleased with. Although I would have liked the word "bullying" in the Bill or the regulations, I am happy to know about the future work of the Health and Safety Commission and I look forward to it. I am aware of the good practice and the work of the officers in the field from my former time as a commissioner in the Health and Safety Commission. They are experts in that area. I am happy that they are to be involved.

I place on record my sincere thanks to my noble friend the Minister for his understanding approach to the amendments. It is good to debate when an employer and I mostly agree. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

Schedule 4 [Tribunal jurisdictions to which section 32 applies]:

Lord McIntosh of Haringey

moved Amendment No. 19: Page 68, leave out lines 31 to 34. The noble Lord said: My Lords, the amendment tidies up the wording in Schedule 4, which lists the jurisdictions to which the admissibility regime will apply. It removes two jurisdictions from the list—the Employment Tribunal Extension of Jurisdiction (England and Wales) Order and the corresponding order for Scotland. These two orders ensure that tribunals can consider certain breach of contract cases in which the employment relationship has already ended. In other words, former employees can bring claims of breach of contract to tribunals. Current employees must use the courts to resolve contractual disputes with their employer.

Our stated policy is that the admissibility regime will not apply to former employees except when constructive dismissal is claimed, so there is no need to include these jurisdictions in Schedule 4 because they apply to ex-employees only. The amendment therefore removes unnecessary wording from the schedule.

I am about to commend the amendment to the House, but as it is the last amendment on Third Reading and we have applied the excellent tradition of not making speeches on the Motion that the Bill do now pass, on behalf of my noble friend Lord Sainsbury and myself I express my appreciation to all Members of the House who have taken part in proceedings on the Bill. I thank the Opposition and Liberal Democrat Front Benches, but also those on the Government Back Benches who subjected us to intensive interrogation. We had 10 very difficult sessions in Grand Committee. I shall not conceal from my noble friend Lady Turner that she and her friends caused us a great deal of grief.

Changes have been made to the Bill. My noble friends clearly felt passionately about the issues that they were raising. I hope that my noble friend Lady Turner agrees that the Government's attitude has not been set in stone, as the noble Lord, Lord Wedderburn, described it at the outset. We have made changes that my noble friends Lady Turner and Lord Lea and other friends with trade union experience have welcomed. We even made a recent change that was inspired by the noble Baroness, Lady Miller of Hendon. All of that has meant that the consideration of the Bill has been proper, in parliamentary terms.

I also pay tribute to the Bill team from the employment relations division of the Department of Trade and Industry. They have worked long and hard to great effect to ensure that the arguments for the Bill were put as well as feeble Ministers could put them and that the importance of debate in your Lordships' House was recognised. I beg to move.

On Question, amendment agreed to.

Lord Sainsbury of Turville

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass. —(Lord Sainsbury of Turville.)

On Question, Bill passed, and returned to the Commons with amendments.