Employment Bill

HL Deb 30 May 2002 vol 635 cc1522-68

1.26 p.m.

Consideration of amendments on Report resumed on Clause 22.

Baroness Turner of Camden

moved Amendment No. 14: Page 32, line 38, leave out subsection (2) and insert— (2) In section I(1)(b) of the Litigants in Person (Costs and Expenses) Act 1975 (c. 47), after "Northern Ireland,". there is inserted— (bb) employment tribunals,". The noble Baroness said: My Lords, this amendment relates to Clause 22(2), which makes provision for regulations to include payment to another party for the time spent preparing the case. It is a very surprising provision; it may even be unique. It has occasioned opposition not only from unions—my own union Amicus has written to me arguing strongly that the clause should disappear from the Bill—but also from NACAB, and other organisations, which have been concerned in assisting claimants. The Law Society believes that it will impact disproportionately on applicants. It is seen as a further disincentive, aimed as another obstacle to be overcome by employees wishing to put their case to a tribunal.

If one thinks about it for a moment, it will be seen to be basically unfair. A claimant may have very little on which to base a claim for time spent on preparation. If unrepresented, he may very well prepare his case in the evenings on his kitchen table. However, if this clause continues to exist unamended, a company could claim for the cost of its personnel department, the salaries of senior executives, and overtime pay for staff involved in case preparation. Indeed, the amount involved could be really very substantial.

NACAB has told us that firms already use the possibility of costs against claimants as a means of intimidation. Solicitors acting for the employer—and we have been given examples—write to the claimant and say, "We intend to fight this case all the way. It is fairly certain you will lose, and then we shall be able to claim costs. These could run into hundreds of pounds. Do you really want to run this risk? Much better not to do so—drop the case", and so on. This already happens. If preparation payments were added, we can just imagine how this could be used for further intimidation.

We made a number of attempts to amend this clause in Committee. None of this attracted government support. We were told it would all be dealt with by regulation. So we are back again on Report, discussing what I believe to be an unsatisfactory clause. The Government have tabled amendments, which will be debated later. However, I believe that our amendment is more suitable.

As I said earlier, we are not alone in our opposition. Judge John Prophet, President of the Employment Tribunals, also opposes the clause. He has gone further, and suggested a way in which it might be dealt with. He says simply this: Take out clause 22(2) and instead have an order made by the Lord Chancellor under Section 1(1)(c) of the Litigants in Person (Costs and Expenses) Act 1975 specifying Employment Tribunals. This has been done for Employment Appeal Tribunals in the Litigants in Person (Costs and Expenses) order 1980". Judge Prophet has also said that this will bring preparation time for unrepresented parties within the normal costs procedure operated by employment tribunals, and that it can be used to cover situations where the party is not legally represented. Our amendment seeks to do precisely that without having to have an order made by the Lord Chancellor.

Our amendment seeks to add employment tribunals to the list of courts and tribunals to which the 1975 Act applies. The relevant part of the Litigants in Person (Costs and Expenses) Act 1975 reads as follows: Where, in any proceedings to which this subsection applies, any costs of a litigant in person are ordered to be paid by another party to the proceedings or in any other way, there may, subject to the rules of court, be allowed on the taxation or other determination of those costs sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates". It continues: This subsection applies to civil proceedings"— and it lists the courts to which the Act applies. We are seeking simply to add to that list the employment tribunals. This is a simple and, it seems to me, a rather elegant way of putting Judge Prophet's suggestion into operation.

In Committee, the Minister gave the impression that the Government were concerned about unrepresented employees. My noble friend Lord McIntosh said that preparation for such individuals could be arduous. But the Litigants in Person Act was designed precisely to help such people. I believe that the Government were not altogether happy about this clause when we discussed it in Committee. Certainly they have put down their own amendments to it. I hope that they will agree that we do not need an all-embracing clause providing for payments for preparation. The law that we have suggested will do perfectly well if only the Government will agree to the amendment. I beg to move.

1.30 p.m.

The Deputy Speaker (Lord Elton)

My Lords, I have to tell the House that if this amendment is agreed to I shall be unable to call Amendments Nos. 15 and 16.

Lord McIntosh of Haringey

My Lords, I am unhappy about the amendment but from very much the opposite point of view to that put forward by the noble Baroness, Lady Turner. I recognise the origin of the amendment and respect Judge Prophet's position. But the amendment will make matters worse for applicants, in particular for unemployed applicants. It would have the reverse effect to that which has been suggested.

Tribunals were established with particular principles in mind and with their rules and procedures framed in a particular way. We have debated already, both in Committee and today, the extent to which there are legitimate and proper differences between tribunals and the civil courts— and one particular difference is in the costs regime.

In the civil courts it is the general rule that the loser pays the winner's costs, whereas in the tribunals costs are limited and are awarded in less than 1 per cent of cases. When I debated this issue with the noble Baroness, Lady Miller, I rather took the silence of my noble friend Lady Turner to indicate that she agreed with what I was saying—that is, that we believe costs should be awarded only in a very small minority of cases. What the noble Baroness, Lady Miller, said about costs following the issue is not the proper provision. We need different rules and procedures.

Tribunal rules on costs are simpler and less detailed because, in general, parties do not expect to claim costs or to pay them and because it is far more common for parties to represent themselves. That is part of the wider access to tribunals which is provided, which has always existed and which is continued in the Bill.

The reason why we have not gone down the litigants-in-person path is that we do not want to require parties to keep detailed records of time spent, expenditure and financial loss in the same way as they might if they could generally expect to recoup their losses. This would be disproportionate. It makes sense in a system whereby a party can always expect to face costs, but in a system like this, where costs are not a common occurrence, the question of costs is likely to be retrospective—in other words, people will not have thought about it from the start and they will not have kept detailed records of time spent and expenditure such as phone calls and postage.

The litigants-in-person provision provides that litigants in person may claim for payments reasonably made by them for legal services relating to the conduct of the proceedings, as well as an hourly sum in respect of costs which would have been allowed if the work had been done by a legal representative. I understand the concerns to which my noble friend referred. They have been raised by employee representatives, advisers, trade unions and the legal profession—although not by the Law Society, which is now supporting us on this matter.

The level of costs awards would rise if tribunals were able to award both legal costs and preparation time. That was the issue which occupied a great deal of time, quite legitimately, in Committee. But we have dealt with that. Amendment No. 17 specifically states that you cannot have awards of both costs and preparation time; it has to be one or the other. I believe that that deals with the substance of the major concerns expressed in Committee.

In the civil courts and in the Employment Appeal Tribunal most people have legal representation, whereas in employment tribunals parties are frequently represented by other sources. Applicants who have legal representation from a voluntary source would not be litigants in person and so they would not be eligible to claim their preparation time, despite the fact that they may have still undertaken the bulk of the preparation work and have been subject to vexatious behaviour or forced to pursue a case through a tribunal when the employer has no reasonable defence to the claim. Such a party would, under the proposed government amendment, be eligible to receive either costs or a preparation time award, whichever was the more appropriate. Let us take the case of an unemployed applicant. Such a person cannot use the litigant in person provision, but he or she can use the provision for preparation time provided for here.

Concerns have been expressed about the hourly rate. We intend to work out in the consultation on the regulations how the preparation time award will be assessed—what the hourly rate will be. We have said that we will lay down guidelines for the tribunals and will consider a ceiling on case preparation awards; ranges of amounts by reference to different jurisdictions—that is, for different issues coming before the tribunal—to ensure that claims are proportionate; linking assessment to the applicant's rate of pay or former rate of pay; and the remuneration of the employee of the respondent who dealt with the matter; or, indeed, a standard rate. We want to ensure that only reasonable levels of preparation time are compensated which are proportionate to the complexity of the case.

The amendment would impose burdensome record-keeping requirements when, in the vast majority of cases, they will not be needed. We cannot accept the amendment because we have brought forward Amendments Nos. 16 and 17 which meet the concerns about potentially higher costs awards if parties could claim legal costs in addition to preparation time.

Lord Wedderburn of Charlton

My Lords, before my noble friend sits down, perhaps I may ask him two questions. First, of course the Litigants in Person Act applies to litigants in person, but are we to understand that the Government intend Clause 22(2) to apply to respondent companies which are represented as well as to respondent companies with all their managers, secretaries and so on represented?

Secondly, does not my noble friend agree that nothing in the Litigants in Person Act would extend the range of costs awardable in the tribunal? Section 1 of the Litigants in Person Act—ancl I shall read the whole of it if my noble friend wishes, but perhaps I may summarise—states that where costs are ordered to be paid a claim can be made for work done or other expenses. "Where costs are ordered to be paid" would depend on the discretion of the tribunal under its regulations. It has nothing whatever to do with extending the range of costs in the tribunal; it provides the possibility, which the Government wish for, to add what we may for convenience call "preparation time" to the range of costs. These are costs, why not say so?

Lord McIntosh of Haringey

My Lords, those are two specific questions. The first is: do our provisions apply to companies which are represented? Clearly, companies which are represented have incurred costs. Therefore, they will make any claim under "costs" rather than "preparation time". They cannot do both.

The second question was whether the application to this Bill of the Litigation in Persons Act would extend the range. I never claimed that it would extend the range of applications for costs. What I said was that the use of the Litigants in Person Act would be more complicated and bureaucratic; it would also discriminate unfairly against applicants, and particularly against unemployed applicants and those using voluntary advice—who, strictly speaking therefore, would not he litigants in person.

I understood from a gesture that there was some disagreement about my claim that the Law Society supported the Government on this matter. Perhaps I may quote from the Law Society briefing: Given the nature of employment tribunals, it may be legitimate to allow tribunals to include awards for non-legal costs. Current arrangements are not ideal in this respect, as they can only assist those who have chosen to pay for legal assistance".

Lord McCarthy

My Lords, before the noble Lord sits down, will he look at two later paragraphs in the Law Society's submission setting out its present position. It goes on to say: The government amendment"— that is, Amendment No. 16— does not address this point directly, but it does make the structure fairer as between the parties. It allows the parties to claim non-legal costs but only as an alternative". That is fine. It then continues: The amendment remains a rough and ready solution, but it is in our view fairer than the existing provisions in the Bill". In other words, the Law Society believes that the Government have improved the situation but not solved it.

Lord Wedderburn of Charlton

That is right.

Lord McIntosh of Haringey

My Lords, I was claiming Law Society support for our provisions here as against the litigants in person provision. We can debate Amendment No. 16 when we come to it.

Lord McCarthy

Hear, hear!

Baroness Turner of Camden

My Lords, I am not very happy, as I am sure my noble friend the Minister will appreciate, with the response to the amendment.

As my noble friend Lord Wedderburn has pointed out, the employment tribunals would still have discretion under the provisions of our amendment. I am very surprised that the views of Judge Prophet should have been dismissed in such a casual way by the Minister. He is a well-known expert in his field and has been president of the employment tribunals for a very long time. His advice should be listened to and treated with a great deal more respect.

Lord Wedderburn of Charlton

Hear, hear!

Baroness Turner of Camden

My Lords, I still feel that my union was right to press for the provision in Clause 22(2) to be removed from the Bill altogether. Our main concern—which was the concern of NACAB and others—was that the mere existence of a payment for preparation costs was extra intimidation and could be utilised as such against claimants who might otherwise want to pursue cases. NACAB has provided examples of cases where that has been done simply because costs can be awarded. Solicitors acting for companies will often try to intimidate employees so that they do not proceed with cases which they have attempted to start in tribunals.

There is little point in pressing the amendment to a Division now. However, I feel strongly about the matter, as do external organisations. We shall have to re-examine this provision before the Bill leaves this House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.45 p.m.

Lord Wedderburn

of Charlton moved Amendment No. 15: Page 33, line 1, leave out "payment" and insert "special payment by way of costs or expenses The noble Lord said: My Lords, in a sense, this amendment is partly an exercise in practicality and partly an exercise in logic. In Grand Committee, the noble Lord, Lord McIntosh confirmed that the new award for preparation time would be made only in circumstances in which a costs award may be made at present. On 18th March (at col. CWH 134), his answer to my noble friend Lord McCarthy was as follows: The noble Lord answered his own question in quoting the Explanatory Notes". He went on to quote from the Explanatory Notes: It is also intended that the new awards could be made only in the circumstances in which a costs award may be made at present; that is, where the party has behaved unreasonably in some way". The amendment suggests that if the new awards are to be made only in cases where costs can be awarded, the Bill should state what they are. They are a different form—a new form—of costs. Underlying the amendment is a doubt—expressed often enough in Grand Committee—as to whether this wholly new animal in the zoo of awards in employment tribunals is really necessary. I call Clause 22(2) the "siren clause". I am thinking of Mr Pecksniff, who could not remember the name of, those fabulous animals (pagan I regret to say) who used to sing in the water". His first attempt was "oysters". That was not right. His second attempt was "swans". Then he said: wait a minute, I know—"sirens". The new preparation awards are sirens. They are not costs; they are not oysters; they are not swans; they are not compensation; they are some new kind of award. Yet they are to be awarded only when costs can be awarded.

It is true that a later amendment attempts to sort out the matter by stipulating either the one or the other. We shall debate that when we come to it. There are other problems with that amendment. I am sorry that my noble friend moved on to it, but, as he said, we shall discuss it when we come to it.

The Law Society pointed out in its original briefing—and repeats in this briefing—a fundamental point about Clause 22(2). The provision is no threat—any more than was our amendment to it, moved by my noble friend—to the unemployed or to any other applicant. Clause 22(2) is a threat to applicants by reason of what employers may threaten. I do not say "will threaten", but unscrupulous employers, as the Law Society states, may well apply this subsection in a way that is "disproportionately unfair" to applicants. It sets out the reason: In most cases the applicant's claim for costs will be limited to the value of his or her time, whereas a respondent's claim could in many cases include compensation for the time of several people". In Grand Committee, we discussed who those people were. The list included: managers; personnel managers—who are employed to do the work anyway; in-house lawyers—cases have arisen under the Litigants in Person Act involving in-house lawyers; and secretaries. In other words, the claims made for preparation time for a case may be very expensive indeed. Even as costs, they could rise to several thousands pounds.

What is the real reason why the Government will not call these oysters "oysters", but insist on calling them what in effect are sirens leading employment tribunal practice on to the rocks? Do they want people not to claim for the real preparation time in a case—because that would be too onerous in terms of record-keeping? I must say, it is an astonishing argument. Are they saying: you do not have to keep any records; you simply claim for preparation time—and we will tell you, on the Government's scale, how much you can get?

Is that their reason for not accepting the amendment—as I suspect they will not, because they have tabled an amendment of their own? Let us have that out on the face of the argument. Is the real reason why they will not state that this special form of costs are costs—or "expenses" in Scotland—so that employers can claim, not their real costs, because record-keeping would be too onerous, but costs only on the scale set out by the Government? Although some employers' organisations have expressed pleasure at the provision, I am slightly surprised that they have not asked the Government what the scale is likely to be. Is it likely to be the £9.25 an hour maximum that is awardable under the Litigants in Person (Costs and Expenses) Act 1975? Is that the kind of charge that the Government envisage? If so, some employers will get a rude shock.

There is another question and another reason why it is vital to identify these costs as costs in the Bill. They are oysters and they should be known as oysters, not as some other new animal or fish. Although my noble friend generously accepted in Grand Committee that they would be awardable only in situations in which costs are awardable, neither he nor anyone else can answer the fact that in Routes to Resolution and in their response to consultation, from which I quote, the Government said: The Government believes it is right that those affected by weak and vexatious cases, applicants or respondents, are compensated for the time spent preparing their case". A weak case is very different from a vexatious case. We shall come back to that when we discuss striking out. A weak case is quite different, even on the definitions offered by the surveys, which have been a most unsatisfactory feature of the whole debate. On any definition, a weak case is nowhere near a vexatious, misconceived, unreasonable, frivolous or even contumacious case, which has come into the discussion.

I assume that weak cases will not attract an order of preparation time. That is my third question for the Minister. By saying that they will be awarded only where costs are awardable, the Government have retracted from the position in Routes to Resolution and the response to consultation.

Lastly, the citizens advice bureaux have expressed a strong fear about the clause. Their document says: We fear that the potential for a party's preparation time to be reflected in costs awards will simply strengthen the ability of employers' legal representatives to so intimidate tribunal applicants with threats of action for costs quoting the maximum that may be available". These are new awards. The civil courts seem not to know of such awards—at least there are no records to show so. My noble and learned friend the Lord Chancellor said in a recent Written Answer to me that no records were kept of such awards and it is not known on what principles they would be made, even if some have been made, which some people get at but nobody knows about. If they are to be added, let them be added for what they are. Oysters are oysters and costs are costs. Let us have it stated that preparation time is a form of cost.

My noble friend the Minister has referred to the coming amendments. This amendment is not inimical to the government amendments. It is particularly phrased so that this will be a special award of costs. The government amendments could follow and apply to Clause 22(2) without any problem if the Minister insists. The aim of the amendment is to make it clear that costs are costs. If these are to be awarded, let us say so and then we will know that they are limited to vexatious, unreasonable and misconceived applications. I beg to move.

Lord McIntosh of Haringey

My Lords, again I oppose the amendment, but for the opposite reason to the motivation implicit in the arguments of the noble Lord, Lord Wedderburn. I oppose the amendment because I think it is inimical to the interest of applicants, and in particular of unemployed applicants.

The amendment would limit compensation for case preparation to the costs and expenses that a party has actually incurred. Its effect would be that preparation time could compensate a party only for the actual financial loss it had incurred as result of the other party's unreasonable behaviour.

We have used "payment" rather than "costs or expenses" to enable preparation time to cover the situation in which a party has worked on his or her case without incurring financial loss. To return to an example that I used in response to the previous amendment, if the applicant is unemployed, it would not be appropriate to award preparation time for the actual expenditure that the applicant suffered as a result of preparing the case because there may not be any actual expenditure. If the unemployed applicant is doing the work himself, there are no outgoings, if I may use a new word—I do not know whether that is an oyster or a swan. However, it would be appropriate to order the respondent to make a payment to the applicant in recognition of the time spent by the applicant preparing for the case as a result of the respondent's unreasonable actions.

The noble Lord's fourth point seems to come in here. He challenges me that the civil procedures rules do not cover the cases in which no records are kept. I hope that I have understood him correctly. The principle is recognised in the civil procedures rules, which provide that where a litigant in person cannot provide evidence of financial loss, he or she may claim for the time spent working on the case, which in the civil courts is paid at a set hourly rate. Our proposals are comparable but preferable in the tribunal situation to that which is already provided in the civil rules.

On the calculation of the hourly rate, tribunals will have discretion as to whether to award preparation time and what that award should be, but it is helpful to have guidelines, which we shall provide, to ensure consistency across tribunals so that the parties understand the basis on which the award has been made.

The noble Lord referred to the concerns expressed by NACAB—whose views I very much respect, as it is deeply involved in such cases—about the threat of costs to intimidate applicants regardless of whether the case is hopeless. I must come back to the situation in employment tribunals, where costs are very rare. Fewer than 1 per cent of cases involve cost awards. We intend to make it clear through guidance that costs are awarded in only very limited circumstances. That is reinforced by our Amendment No. 17, to which I have already referred.

The noble Lord came back to the use of the term "weak cases" in Routes to Resolution last year and in the response to the consultation. The provisions do not use the word "weak", which was intended as a shorthand description of the terms used there—that is, vexatious, abusive, disruptive or unreasonable. There is no extension intended or provided in the Bill in the terms in which costs might be awarded.

I apologise for going over the same ground to some extent, but I have to refer again to the nature of the concerns expressed in Grand Committee. The concerns were that there would be excessive use of the preparation time provisions to intimidate applicants. Although I respect the motivation behind those concerns, I believe that our Amendments Nos. 16 and 17 go some way to answering them. I believe that this particular amendment, providing for preparation time to be defined as part of costs and expenses, would make matters worse for applicants, particularly unemployed applicants who therefore have no costs in preparing their case. I hope that the amendment will not be pressed.

2 p.m.

Lord Wedderburn of Charlton

My Lords, I am grateful to the Minister for his explanation, which covered roughly the same ground covered in Grand Committee. I do not think that he should apologise for saying what he said in Grand Committee. We certainly have no intention of apologising for what we said in Grand Committee in view of the guidance in your Lordships' Companion to the Standing Orders which I quoted in speaking to our first amendment.

The Government, with great respect, are in a frightful old muddle about this. In Grand Committee, we moved an amendment saying that preparation time awards could be awarded only in cases where there was vexatious, frivolous, misconceived or unreasonable proceedings, but the amendment was rejected. Now we are again being told that regulations will make it clear that costs can be awarded only in very limited circumstances. Although I am grateful for the assurance that "weak cases" was just a generalisation in the preparatory documents, the term was used rather too often without much explanation. Nevertheless, I am very grateful for the explanation that "weak cases" means cases in which the case is vexatious, frivolous, misconceived or conducted unreasonably. Those are the cases in which costs can be awarded. Those are the cases in which we are now being told that preparation time awards are to be awarded.

If that is so, why cannot the Bill say so? This is one of so many cases in which the nub of the issue is to be concealed or explained in regulations, the exact nature of which we do not know. In moving Amendment No. 33, my noble friend Lord McCarthy will raise the issue of our ability to see the drafts of these regulations. Everything in the Bill points to that.

The most important point is that no one has expressed worries about the application of this general concept of preparation time in relation to applicants who—as Ministers so often say, and as has been said in another place—are "sitting at their breakfast room table". The idea that regulations could not provide for compensation for loss of time by such people is bizarre. Of course regulations could say that people should be compensated for loss of time. The worry has been the sums that respondent employers will claim from applicant workers. There was not a word about that in the reply of my noble friend the Minister. If there was any mention of it, I shall read it with interest. I did not hear a word about that.

It is true that costs are rare. However, preparation time awards will not be threatened rarely; they will be threatened often, as the Law Society made absolutely clear in both of its briefs. In resisting all efforts for the Bill to tie down to a narrow ambit these new sorts of animals in the zoo of money to be paid by applicants to respondents, my noble friend the Minister is doing a disservice to the practice of employment tribunals in this country, and it will be seen as a most serious departure by the Government. The move has been supported only by employers' organisations. It has been resisted by the Law Society, by citizens advice bureaux and by various unions, and yet the Government persist in it. I hope that some further thought can be given to it by Third Reading; but in view of the amendments we are coming to I rather doubt it.

This is definitely a wicket down for no runs at all. It is a most sorry moment in the history of employment tribunals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey

moved Amendment No. 16: Page 33. line I, leave out from "of" to end of line 2 and insert "time spent in preparing that other party's case. The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendment No. 17.

Going back to basics, I do not think that anyone disagrees that there should be provision for compensating parties who have been on the receiving end of unfounded or vexatious cases. Of course there should be minimal checks in the system to ensure that the tribunal service is used responsibly by those who need it, and that parties and their representatives conduct cases in a way which does not disadvantage the other party or disrupt the proceedings.

The new provision for preparation time payments will address the gap in current legislation that there is no recompense for self-represented parties who have suffered unreasonable behaviour, despite the fact that self-representation is commonplace in employment tribunals. I have listened very carefully to what my noble friend Lord Wedderburn said in his closing speech on the previous amendment, and I believe that his comments were profoundly misconceived. I believe that the provision for preparation time, being addressed as it is to self-represented parties who have suffered unreasonable behaviour, is particularly helpful to applicants going to employment tribunals.

We do not believe that, in practice, the provision for preparation time would lead to a big rise in the level of costs awards. Evidence shows that tribunals are very moderate in awarding costs, both in the number of awards made and in the level of the awards. However, we have heard from a number of highly respected organisations which work with applicants that the threat of costs is being used to intimidate applicants into withdrawing their complaints—a point legitimately made by my noble friends Lord Wedderburn and Lady Turner—regardless of whether the case is without merit or whether the applicant's behaviour has been unreasonable. My noble friends are concerned that awards could potentially be higher as a result of the new provision for preparation time, and that this would add to the arsenal of heavy-handed tactics which are being used to warn off applicants genuinely seeking redress for an infringement of their rights.

We want costs and preparation time to be a deterrent against those few cases or defences which have no reasonable prospect of success, and we want to deter unreasonable behaviour. We want to ensure that where parties have to endure such behaviour they should not lose out just because they choose not to, or cannot afford to engage a legal representative. But access to justice must be preserved, and at the same time we do not want fear of excessive costs awards to deter vulnerable parties from seeking to enforce their rights.

This is why we are bringing forward an amendment which provides that when the regulations on costs and preparation time are drawn up they must include provision that a tribunal cannot award both costs and preparation time.

Before I turn to the detail of the substantial amendment—I believe that in talking about an earlier amendment I allowed myself to talk about Amendment No. 16, whereas the substantial amendment is Amendment No. 17. I apologise for that—let me first address a couple of other minor changes.

Noble Lords will observe that on the next printing of the Bill the title of the subsection on preparation time is changed from "compensation for preparation time" and will instead refer to, payments in respect of preparation time". It is a side heading and therefore does not appear as part of the Bill. That addresses the issue which was raised in Amendment No. 14.

The title "compensation for preparation time" is not an entirely accurate reflection of the subsection because "compensation" implies that the payments relate to actual loss. A preparation time payment is for the time the party has spent preparing for the case and is not necessarily limited to actual loss. For example, we intend that an unemployed person who acts in person may claim preparation time. This is a technical change which does not form part of the amendment and does not in any way affect the intention behind the provision for preparation time, but I wanted to take this opportunity to mention it so that it does not cause confusion at a later stage.

The first government amendment to Clause 22—Amendment No. 16—is the replacement of the line, the time spent by that other party in preparing his case", with, time spent in preparing that other party's ease". This is because we intend that awards of preparation time which are made to respondents who employ staff should be able to take account of time spent by those staff on the case. Although the current wording of the clause would allow this in the case of a corporate respondent, since it can act only through its employees, the position of a sole trader is more doubtful. We propose removing this doubt by taking out the words, time spent by that other party". There is no change to the intention behind preparation time where it is the respondent who is claiming preparation time. It should apply regardless of whether the employer is a corporate body or a sole trader. The principle is that where we are talking about an employer who has had to defend a hopeless or vexatious case the preparation time award should cover any time which the employer has had to spend working on the case. The clause as drafted might not allow a sole trader to take account of his employees' time because of the words "by that other party". We want to remove that doubt.

The new wording also refers to "time spent" rather than "the time spent". This is a minor change to reflect that although parties will have to show that they have spent time on the case in order to be eligible for an award, they will not be required to produce detailed evidence of the actual time spent.

The substantive amendment to Clause 22—Amendment No. 17—provides that where regulations are made on costs and preparation time they must include a provision that the tribunal may not award both costs and preparation time to the same person in the same proceedings.

There are a number of ways of achieving the effect that both awards should not be payable; for example, by replacing the current provision with provisions similar to those in the civil courts for litigants in person, or by saying that only unrepresented parties may claim preparation time. However, we believe that the amendment we have proposed is the simplest solution. We do not want to open up arguments about whether a party is represented since many parties engage a representative part way through a case, or seek legal consultations throughout the case. Furthermore, litigants in person in the civil courts can claim for legal consultations so a provision for litigants in person in the tribunal along the lines of the civil courts would not meet concerns about higher costs awards.

The amendment will address fears that the new provision for preparation time may be used to intimidate applicants, but will still enable tribunals adequately to compensate self-represented parties who have had to fight or defend cases which have little hope of success or who have been subjected to vexatious behaviour. I beg to move.

Lord McCarthy

My Lords, I do not apologise for the fact that we are debating this issue again and that we have to debate the issue taking into account the general case for preparation compensation because that is what the Minister has just done. He has once again traversed the general ground. He made much of the fact that we are not totally opposed to the notion of preparation compensation if it is introduced in the proper way and if, for example, it were to be clearly confined to self-represented parties. But that is not what the Bill says.

So the Minister has made a general case but he does not take into account our qualifications. This is remarkably reminiscent of Clause 39, and the objections we raised to the form of the measure, its precise way of being done and the consequences of that. That is why I am afraid I must return to what the Law Society says. The noble Lord quotes from the Law Society in a very selective way. The Law Society is saying not that employers will necessarily misuse the system—perhaps they will do so—but that whether or not they do so, the system, the structure and the words of the Bill are designed in such a way, whether intentionally or unintentionally, as to prefer and benefit the employer. That is what the Law Society says. The Minister quoted one part of the document from the Law Society and I shall quote another part. It said: The Law Society welcome this Government amendment to the Bill". Okay. It continues: We considered that the existing provision in the Bill risked creating a calculation mechanism"— that is the point; it involves not abuse but a calculation mechanism— that was structurally unfair to applicants". That is what we want to address. It continues: In our view, applicants would have been exposed to the risk of a greater costs award than the respondent in almost every case. That is because in most cases, an applicant's claim for costs will be limited to the value of his or her time, whereas a respondent's claim could, in many cases, include compensation for the time of several people". That involves something structural being added to the Bill; it does not involve abuse. I submit that Amendment No. 16 makes—or could make—the situation worse.

The Bill currently says that tribunals could order a party, to make a payment to any other party in respect of the time spent by that other party"— so far we are in the singular— in preparing his"— at that point we are personal—"case". That might help the worker at the kitchen table.

However, the amendment will alter that. The Bill will state that the tribunal may allow, time spent in preparing that other party's case". Time spent by whom? By anyone. The Minister told us just now that he had several people in mind. He said that employers had suggested a number of people and that small employers had suggested still more people. That is precisely what we do not like about the arrangement. It is structurally biased towards the employer. That is why I ask the Government, even at Third Reading, to introduce further modifications. I oppose the amendment.

2.15 p.m.

Lord McIntosh of Haringey

My Lords, I have not heard opposition to the amendment. I have heard criticism about the motivation for the original formulation of the clause and the reserved way in which the Law Society welcomed the amendment— and I acknowledge its reservations. However, I have heard no comments suggesting that the amendment should not be included in the Bill.

Lord Wedderburn of Charlton

My Lords, my noble friend said—Hansard will reveal this—that the objection is that the Bill, which states, time spent by that other party", will be changed to, time spent in preparing that other party's case". The phrase, "by that other party", will be dropped. We have completely at large the phrase, "time spent"; by whom? That is the specific objection to the amendment. It extends the possible range of those for whose time the charge and award could be made.

Indeed, I understood, as did my noble friend, that the Minister agreed that time spent by managers, in-house lawyers, personnel directors and secretaries could all be charged under the amendment as, time spent in preparing that other party's case". That is the objection to the words in the amendment.

Lord McCarthy

My Lords, the Minister will discover that what he said—

Lord Rotherwick

My Lords, as I understand it—

Lord McCarthy

My Lords, the Minister referred to staff on the case; "staff" is plural.

Lord Rotherwick

My Lords, perhaps the noble Lord, Lord Bassam, should make the point.

Lord Bassam of Brighton

My Lords, it is only right that I remind your Lordships' House that on Report there should not be an intervention after the Minister has risen to speak.

Lord McIntosh of Haringey

My Lords, it is my amendment and I am perfectly happy. I am responding to the comments that were made. I took an intervention but I really do not think that it was well founded. I set out in some detail what the rather minor Amendment No. 16 meant and how it should be interpreted.

If I repeat the exact words that I used, it will be clear that I have already answered the concerns that have just been raised. We intend that awards of preparation time which are made to respondents who employ staff— yes, that is what I said—should be able to take account of time spent by those staff on the case. I also said that although the current wording of the clause would allow this in the case of a corporate respondent, since it can only act through its employees—in other words, there is no other way in which a corporate respondent could incur preparation time—there was a doubt about the position of a sole trader. That is why the amendment was tabled and that is the only effect that it will have. I hope that the amendment will be agreed to.

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 17: Page 33, line 2, at end insert— (2) If employment tribunal procedure regulations include—

1. (a) provision of the kind mentioned in subsection (1), and
2. (b) provision of the kind mentioned in section 13(1)(a), they shall also include provision to prevent an employment tribunal exercising its powers under both kinds of provision in favour of the same person in the same proceedings.""

On Question, amendment agreed to.

[Amendment No. 18 not moved.]

Clause 23 [Employment Appeal Tribunal]:

[Amendments Nos. 19 and 20 not moved.]

Clause 24 [Conciliation]:

The Deputy Speaker (Lord Dean of Harptree)

My Lords, if Amendment No. 21 is agreed to, I cannot call Amendments Nos. 22 to 24.

Lord Wedderburn of Charlton

moved Amendment No. 21: Page 33, line 34, leave out subsections (2) to (4). The noble Lord said: My Lords, under this clause we turn to the matter of conciliation. 'The ACAS provision of conciliation is one of the most valuable parts of the present administration of industrial justice. The number of conciliated cases has increased regularly and they are one of the answers to the so-called "compensation culture". Employees have played their part in an increasing number of conciliated settlements.

Subsections (2) and (4) of Clause 24 contain a problem which suggested to us that they should be omitted from the Bill. We argued that in Grand Committee but, as the companion suggests, we now bring back that argument on Report. The subsections remove the duty on ACAS to continue conciliating after a certain time, although they leave ACAS with the power to do so. It would be extraordinary if they removed the power of ACAS to conciliate. But, of course, a duty to conciliate prompts in the minds of those who are most expert at this process that they had better keep an eye on things and listen carefully to see whether anything more can be done.

We do not understand why that sensitivity of ACAS—the duty to conciliate—should be reduced to a mere power. I want to be fair to the Government's case in relation to this matter, partly because I am not sure that I understand it. Perhaps I may make my point by way of quotations. In Grand Committee my noble friend Lord McIntosh said that the Government were, trying to diminish what is called settlement on the steps of the tribunal".—[Official Report, 18/3/02; col. CWH 140.] I understand that that is their aim, although I say immediately that a settlement on the steps of the tribunal in terms of reducing the number of hearings is helpful. I believe that that was also one of the subsidiary objectives in regard to settlements outside the tribunal.

My noble friend added to that when he said: I am very modest in my expectations … of this clause— that is, Clause 24. He continued: By focusing attention on a period in which conciliation is the first priority, there is a possibility that there may he some reduction in last-minute settlements".—[Official Report, 18/3/02; col. CWH 144.] That accords with the Explanatory Notes and all the previous government documents. Perhaps I may quote a sentence from the Explanatory Notes: The clause provides that ACAS's duty to conciliate cases reverts to a power to conciliate … The effect will be that once the conciliation period is over, the conciliation officer can judge whether to continue to conciliate the case, or to pass it hack to the Employment Tribunal Service … so that a time and place can be fixed for a hearing". However, the conciliation period will have gone. In Routes to Resolution, the case was put as follows in paragraph 4.9: A clear period for conciliation with limited scope for extension might focus the parties' minds within that period on whether they were interested in reaching an amicable settlement or not. When the period ended if no settlement was reached, ACAS could extend it if … there was still a reasonable prospect of an early settlement being reached". Of course, it has the power, but it has no duty to continue to be interested in the case. It may increase the number of settlements.

On that and on other occasions in Grand Committee, we asked the Government what work they have carried out to decide whether that new limitation on ACAS would increase the number of settlements. They did not appear to have done any, but perhaps they have now. If so, perhaps the Minister can produce the results.

As I understand it, there is no document from ACAS asking for this provision. It is not based on any research. There is simply a notion that it may increase the number of settlements. We do not believe that that is likely. We believe that late settlement is a feature of many systems of justice. Perhaps I may quote the Legal Action Group brief on Clause 24: Late settlement often happens because of late disclosure of documents or other evidence allowing the strengths and/or weaknesses of the applicant's claim to be clarified. A fixed period for conciliation is inappropriate unless tribunals manage cases so as to ensure that early disclosure of evidence takes place. Putting pressure on parties to settle without full knowledge of the facts of the case is not conducive to justice". That is a most important point.

Leaving the tribunals for a moment, recently a case in the High Court was settled as the judge began his judgment. That is a late settlement but it was a settlement of the case and was valuable in itself. I and my noble friends do not understand why the Government have introduced a clause limiting the duty of ACAS to conciliate simply on the prospect that it may produce more settlements, when there is no evidence whatever that it will; there is no research and no suggestion from all the bodies concerned. Right, left and centre, bodies like the Legal Action Group and others, who are experienced in the administration of the tribunals, suggest that that would not contribute. The Legal Action Group says that it would be most inappropriate to introduce such a provision into the tribunals' practice.

I have re-read everything that was said in Grand Committee on this subject. I ask the Minister to add to it. I ask him not simply to read the same brief as was read in Grand Committee but to tell the House the basis on which they believe that the number of settled cases will increase. I beg to move.

Lord McIntosh of Haringey

My Lords, perhaps I may leave out that part of my speech which duplicates what was said in Grand Committee. I went into some detail about the extent to which my noble friend Lord Wedderburn and I were in agreement on these matters. He said—he will not mind me quoting what he said in Grand Committee—that it is, common ground that nothing is more important than that we should have as many cases as possible settled by conciliation or other means before they go to the tribunal".—[0fficial Report, 18/3/02; col. CWH 138.] We agree entirely with that. However, we do not agree for the reasons that my noble friend has just given. In Committee I said, rather tentatively and modestly—my noble friend quoted me which I do not mind—that we are trying to diminish settlements on the steps of the tribunal. He thought that was odd because settlements on the steps of the tribunal reduce the number of hearings before a tribunal. He understood our objective to be, as set out in Routes to Resolution, to reduce the number of hearings before a tribunal.

After many sessions in Grand Committee, I hope that we have made it clear that we would like to reduce the number of hearings before a tribunal but that we would like to do so by means of a carrot. In other words, we want to make it easier and more likely that cases will be settled before the necessity of going to a tribunal arises, rather than using a stick that would provide obstacles to appearing before a tribunal. Our view is that this Bill provides the carrot rather than the stick.

Our objection to settlement on the steps of the tribunal is not on the issue of whether it reduces the number of hearings or not, but because of the proposition, and it is no more than that, that if there were to be a fixed period the parties concerned might be encouraged to go to ACAS for conciliation earlier rather than at the last possible minute.

We do not, and cannot, have evidence for that because there is no fixed period to research. If there were, we would have carried out an evaluation. What we can do is to tell noble Lords what is the view of ACAS and what our intentions are. ACAS has said publicly that setting a deadline for the end of the conciliation process could be an important factor in influencing the parties to settle a case in a timely manner. It could be an important factor. It believes that it is important that the period is followed by a timely hearing. It would prefer to see more research into the effect of a fixed period on different jurisdictions before it is implemented. We understand that concern. We intend to ensure that the effect of introducing a fixed period is fully evaluated. We will fully evaluate it. If it is proved that it does not work we shall remove the provision. We can do so by regulation.

I am a researcher, like my noble friend. I would always prefer to make policy decisions on the basis of prior research, but if one is trying something which cannot be introduced on a pilot basis, then surely under these circumstances the way to do it is to make the provision to carry out the evaluation. If it works then our decision has been justified; if not, it can be changed without regard to primary legislation.

In the absence of conclusive evidence, surely it is not unreasonable to ask parties to focus early in the process on the important reconciliation which is available to them. Focusing the minds of parties on dialogue facilitated by ACAS conciliators could lead to earlier settlement. We have not said that we believe that it will increase the number of settlements, but bring them forward in the process. That is the basis on which we propose to work and the reason why have proposed our Amendment No. 22 to remove subsection (3)(a) which attracted some criticism, rather than to do what is proposed in the amendment, which is to remove subsections (2) to (4).

2.30 p.m.

Lord McCarthy

My Lords, before the noble Lord sits down, will he therefore confirm that there is published or unpublished testimony from ACAS and that it desires this provision? If it does, I would like to see it published. As I understand it, ACAS telephones people as soon as it receives the ET1. Then, rather sooner than later, it decides that nothing more can be done. In effect ACAS withdraws. It does not require legislation or a regulation to do what is required.

Lord McIntosh of Haringey

My Lords, I have read out what I understand is the position of ACAS and I am unable to comment any further on it.

Lord Wedderburn of Charlton

My Lords, I appreciate what my noble friend has said. It would be nice to see the material published. My understanding is that ACAS can go along with it, but it is still based on the proposition that it might do something. As I understood the Minister, he said that one cannot prove the effect without doing something. If that proposition were generally established, all kinds of things would be on the statute book. They could be revoked and another section passed saying that Clause 24 is revoked. It was sad to hear the Minister rely on the fact that it is possible to take out Clause 24 by regulation. That is not the nature of research. If one said that one could not prove that a change in the law would have this or any effect at all—although it might—without actually making that change, one would never do any research at all to show that it might be likely to have a particular effect. There is plenty of research that one could do to be able to come to the House to say, which he is not, that Clause 24 would be likely to have an effect. He has not said that. It might. There is a possibility. I do not understand—

Lord McIntosh of Haringey

My Lords—

Lord Wedderburn of Charlton

My Lords, perhaps I may say before my noble friend intervenes that when Ministers intervene early on Report, it has a quite different effect from the effect it has in Committee. In Committee, we had a long discussion on this clause. We ought to have a longer discussion than perhaps is possible if my noble friend is of the view that he has said what he wants to say. But he wants to say something else, so of course I shall respectfully give way to him.

Lord McIntosh of Haringey

My Lords, in a legitimate intervention my noble friend Lord McCarthy asked a specific question. I did not intervene earlier. As I always do on Report, I looked around to see whether anyone else wanted to come in. If ever I fail to do that, I shall be subject to legitimate criticism. But my noble friend Lord McCarthy in what I thought was a legitimate intervention asked me where the ACAS quote came from. It is paragraph 35 of the Government's response. It states: ACAS considered that the proposal"— that is, the proposal for a fixed period— had merit but that more evaluation of the impact of a fixed conciliation period was needed. They considered it could help to encourage timely settlement, especially in those jurisdictions where early contact with the parties has a positive effect". I think that that is very close to what I have said.

Lord Wedderburn of Charlton

My Lords, my noble friend has now replied to my noble friend Lord McCarthy. I thought that he was going to put points to me. But, as a matter of fact his intervention is most helpful because that is exactly what I thought that ACAS said: that more evaluation was necessary before making this change, or that more evaluation would be a good idea. All we have said is that more evaluation by research would be a good idea. I cannot understand why this clause is pursued in the way that it is; albeit—I acknowledge this freely—that the Government will take out paragraph (a). I cannot understand it. Is it because, I ask myself, that this is a genuflexion in the direction of costs to those who do not want to go on conciliating?

That is a much discussed explanation. In Grand Committee we used the notion that the Bill is perhaps set in stone. We now see that one can take chips off it because they are going to take off paragraph (a). But my noble friend's chipped stone response leaves me with no alternative but to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey

moved Amendment No. 22: Page 33, line 42, leave out paragraph (a). The noble Lord said: My Lords, in moving Amendment No. 22, I shall speak also to Amendments Nos. 23, 24, 125, 127 and 139. In Committee, I outlined the Government's intentions in introducing the measures in Clause 24. The clause will provide, through regulations, for a fixed period of conciliation, after which a hearing date will be fixed, subject to ACAS advising that the period should be extended as a settlement is imminent.

I explained that it was our intention, through the introduction of a fixed period, to focus parties' minds on the conciliation process and to reduce the number of last-minute settlements, known variously as settlements in the side room or settlements on the steps. They can result in wasted judicial and administrative time in preparing for the hearing only to find that parties withdraw in the last few days or that no one appears on the day, or a more extreme case, as my noble friend cited. They also cause undue stress to the parties involved and both sides incur costs in preparing for a tribunal that never takes place. So it is best for everyone—here we are all agreed—if agreement is reached early in the process wherever possible.

It is not our intention in any way to diminish the role of conciliation in dispute resolution. Following interventions from my noble friends, I looked again at Clause 24(3)(a), which was intended to be a minor and operational provision, to see whether it was wholly in line with the Government's intentions.

It is not our wish to create circumstances under which the employment tribunal service would not automatically forward the originating application to a conciliation officer. Our intention through subsection (3)(a) was to provide through regulations that uncontested applications would not be passed to ACAS, so that its resources could be better focused on applications where both parties acknowledged the dispute.

But as a result of our debate in Committee, it became clear that valuable reconciliation time could be lost if, rather than sending an application to ACAS immediately, we waited to find out whether the respondent would contest it. We drafted Amendment No. 22 to delete Clause 24(3)(a), which is unnecessary because we agree that all originating applications for jurisdictions that fall within its ACAS's duty to conciliate should be sent to ACAS.

The further amendments, Amendments Nos. 23, 24, 125, 127 and 139, are technical amendments consequential to the changes made in Clause 24 of the Employment Tribunals Act 1996. I commend the amendments to the House.

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendments Nos. 23 and 24: Page 34. line 4, leave out first "such" and insert "employment tribunal procedure Page 34, line 4, leave out second "such" and insert "conciliation

On Question, amendments agreed to.

Baroness Miller of Hendon

moved Amendment No. 25: Page 34, line 15, at end insert— () The Secretary of State shall, within 180 days of this section coming into force, prepare and publish an assessment of the additional resources required by the Advisory, Conciliation and Arbitration Service to facilitate the conciliation process as provided for in this section. The noble Baroness said: My Lords, I return to this amendment which, persuaded by the Minister, I withdrew in Committee, but which I have now amended to take into account what was said in the previous short debate. It requires the Government to publish an assessment of the additional resources required by ACAS to facilitate all of the extra duties that it will have to undertake to fulfil the additional work that the Bill will impose on it.

I have, however, altered the time frame for that report from 120 days from the coming into force of the Act—four months—to 180 days, which is six months. I did so in response to what the noble Lord, Lord McCarthy, said in Committee. He said: I am absolutely certain that the Government have no idea about that, but how could they have? How could they have in 120 days?".—[Official Report, 18/3/02; col. CWH 1461 I have proposed an extra two months, which should be plenty of time for ACAS to work out what extra staff and facilities it will need, especially as it does not have to wait for the Bill to passed before it starts its forward planning. It could have begun work on contingency plans on the day that the Bill was published last February. I cannot believe that it will wait for applications to start flooding in before it begins to think how to handle them.

I was surprised that the noble Lord, Lord McCarthy, spoke against my amendment in Committee because only five days previously in the same Committee, he said: I support a subsequent amendment tabled by the noble Baroness, Lady Miller, which relates to ACAS because at least it is relatively precise. I am not against attempts to try to work out the cost of Bills".—[Official Report, 13/3/02; col. CWH 57.] Of course, it is the noble Lord's privilege to change his mind, but since I do not know why he did so, I hope that he will change it back again as I have now increased the time to six months—a period that he himself mentioned in his speech.

In his reply, the Minister, the noble Lord, Lord McIntosh of Haringey, regaled us with figures for the funding of ACAS, which he said had risen from £26.2 million in 1998–99 to £36.6 million in 2001–02. According to my pocket calculator, that is an increase of more than 28 per cent. I am impressed because during that time, due largely to the wise trade union legislation introduced by the previous government, the number of strikes decreased. To give ACAS credit, perhaps its increased budget also had something to do with that. But the Minister was being too defensive. I was not complaining about the probable cost of ACAS's new responsibilities. I wanted only to be told what it was likely to be.

The Minister also told the Committee that the Government had set up yet another task force: the Employment Tribunal System Taskforce. He said that one of the duties of that task force will be to advise the Government on the need for new investment. So the Government will not really need the six months that I am offering them because the Minister told the Committee that he believed that the task force was to report "in the spring". It is now 30th May, and spring has definitely sprung. When will the task force's report be published? If the Minister is still unable to commit himself, will he either undertake to table an amendment at Third Reading or, at the least, give us an undertaking as to when he can tell us how much of our money ACAS will need to spend? I beg to move.

2.45 p.m.

Lord McCarthy

My Lords, I owe the noble Baroness an explanation. In general terms, I am in favour of research; it is, after all, how I get my living. However, the more I thought about the matter, the more it appeared that there were so many variables. It is virtually impossible for anybody to calculate the impact on ACAS, and that worries me considerably. However, we will not be able to do it by research.

If the Government were right in what they said in Routes to Resolutionthey do not say it so much now—they would expect a considerable reduction in the number of hearings. They do not like us to keep on about that, and they say, "Well, if we said that, we said it, but don't keep on about it. We haven't the slightest idea whether it is going up, down or sideways-. They are right: they do not have the slightest idea.

I shall not bore the House about the new liabilities, but there will be a considerable number of them over the next two or three years. God knows what that will do to the workload of the tribunal. So, I have reached a position of glorious agnosticism: good luck to ACAS. It should be given a large cheque and be allowed to sign it itself. I do not have the slightest idea what it will mean.

Lord Wedderburn of Charlton

My Lords, is my noble friend Lord McCarthy aware that the Minister of State, my honourable friend Mr Alan Johnson, said on the BBC's "Nice Work" programme on 23rd April that, in the first year, there would be a reduction of 34.000 cases?

Lord McCarthy

My Lords, I knew that he had said that, but I did not think that it was fair to repeal it.

Lord McIntosh of Haringey

My Lords, I am happy not to intervene in that part of the debate. I shall address the amendment.

The noble Baroness, Lady Miller of Hendon, is being generous in allowing 60 days. If we had a Third, Fourth or Fifth Reading, she might add another 60 clays each time. However, the length of time is not the reason why we cannot accept the amendment. ACAS is an independent public body, and the manner in which it chooses to allocate its resources is a question for it. It is open to question whether we should go as far as allowing ACAS to sign its own cheque, as my noble friend Lord McCarthy suggested. However, I am happy to address the substance of the amendment, which is that the Government should publish an assessment of the extra resources needed because of the policy.

We neither intend nor expect that a fixed period of consultation should lead to an increase in resource requirements for ACAS. We expect that the fixed period will lead to a change in the point on the timeline of cases at which conciliation will take place at ACAS, not to a change to the number of cases or the level of resources to be expended on them. The point at which conciliation occurs in the timeline of the work of ACAS should not have an impact on the cost involved in providing the conciliation. Any changes to the number of cases coming to ACAS as a result of other measures in the Bill that are not covered by the amendment are unlikely to have effects within six months of the legislation coming into force. To that extent, I am unhappy about the 180 days.

There will be an assessment of the impact of the Bill on the Employment Tribunals Service and on ACAS, once the provisions have been implemented and have had time to settle in. The regulatory impact assessment, which is available in the Library, gives estimates of the impact on ETS and ACAS resources. Early on in the bedding-down process of the new provisions, it will be hard to improve on the estimates in the regulatory impact assessment because of difficulties in distinguishing the effects of the individual changes from other factors which influence resources.

We are very conscious of the important role that ACAS plays in preventing and resolving workplace disputes. I am nervous about returning to Routes to Resolution, but responses to that document confirm the regard which many people and organisations have for ACAS. It is not our intention to request ACAS to take on new responsibilities without the resources to do them justice. That would be nonsense. As I explained in Committee, and as the noble Baroness, Lady Miller, quoted, the increase from 1998–99 to 2000–01 was from £22.6 million to £32.4 million, an increase of 23 per cent. I hope that her calculations are the same as mine.

That shows the Government's recognition of the importance of ACAS's role. We will discuss with ACAS any expected changes to its workload resulting from facilitating the conciliation process as provided for in the clause as part of the consideration of its hid for the 2002 spending round.

Reference has been made to the Employment Tribunal System Taskforce which is considering the resources of the employment tribunal system as a whole. The taskforce is due to report in July and will take account of all its recommendations when considering the funding needs of ACAS. I hope that on that basis the noble Baroness, Lady Miller, will not press her amendment.

Baroness Miller of Hendon

My Lords, I am grateful to the noble Lord, Lord McCarthy, for giving me an explanation of his chain of thought which came about after reflection of the matter. Before that reflection, he obviously thought my idea was a good one, but upon reflection he did not. Perhaps there is a lesson to be learnt in that.

I intend to withdraw the amendment but perhaps I may point out one matter to the Minister for the sake of clarity and accuracy. He said that I repeated the figure which he gave. I gave the figure of £26.2 million but he gave one of £22.6 million. He did not correct me, so I am not sure whether I was wrong or he was.

Lord McIntosh of Haringey

My Lords, it was a slip of the tongue. The figure was £26.2 million.

Baroness Miller of Hendon

My Lords, I am pleased about that. The noble Lord knows that I was listening carefully to what he said and I picked it up immediately. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 25 [Power to delegate prescription of forms etc.]:

Lord McCarthy

moved Amendment No. 26: Page 34, line 21, leave out "required by" and insert "issued under The noble Lord said: My Lords, it has been agreed that I should speak to Amendments Nos. 26 and 27. Amendment No. 27 is the substantive amendment. It takes us back to Clause 25 and the power to delegate the prescription of forms which will now replace our old friend ET3.

We are inserting two new paragraphs which significantly limit the scope of a Secretary of State to prescribe additional conditions and requirements on the form which will replace the existing arrangements. We do that because to a considerable extent in industrial relations on the floor and among trade unionists and employers, the clause was and still is the one which they worry about and fear. It is certainly feared by the unions and by the CAB, with their considerable experience, and by the Law Society and Judge Prophet. All those who have worried about the Bill have made a point of saying that they are worried about what one might call the "gateway clause". They believe, and have believed for some time, that taken together with the statutory procedure provisions this is one of the critical swinging elements. They believe that if there is to be a significant reduction in the number of hearings and applications, this is the way things will go.

The Government deny that. They do not tell us how the change will come about but they say that it will not come about through this legislation. Mr Johnson, on 11th December at col. 102 of the Official Report, Commons, said that the aim was a simplification. He even told us that there would be boxes which people could tick. He told us that he wanted the clause to be user-friendly; that he wanted it to facilitate easy access; and that we should not worry about it.

On the other hand, in Committee my noble friend Lord McIntosh gave rather more credence to our fears by admitting that it was, extremely wide-ranging. It seems that, under the terms of the clause, one could make quite dramatic changes".—[Official Report, 18/3/02: col. CWH 154.] But those changes were not intended. My noble friend went on to make a few helpful suggestions at col. 157 explaining how the clause might work and how it would be constructed. The form might contain a series of simple questions along the lines of, "Did you write a letter? Have you had a meeting?". When my noble friend Lord Wedderburn asked my noble friend whether it mattered if someone did not know the answer, my noble friend said that, no, it would not matter. If the answer is not known, it is not known.

That sounded rather reassuring. Yet at the time the Government would not accept what we thought were a series of modest amendments aimed at limiting the application and the freedom of the Secretary of State. So we have tabled new amendments at this stage. They arise out of what we have been told. The Government have said that applicants shall not be required to demonstrate a knowledge of the law. In Committee we asked for that assurance to be put on to the face of the Bill, but the Government would not agree to do that. It has now been included in the amendment.

The Government said that they would not go beyond the direct experience of the applicant. Applicants would not be asked whether they know what is the law and they would not be expected to know what practices their employer operates that are not necessarily within the applicants' direct experience. Again, that has been included in the amendment.

After some interchange, we received a clear statement that there would be no breach in the present practice of making the forms voluntary. You do not have to have a form. However, it was said—it is quite reasonable—that if you write a postcard or a short letter, the form will be sent, because that will be the easiest way to fill in the background that the parties have to provide if there is to be conciliation. We accept that.

In the amendment we have tried to collect together statements which we think that the Government will accept in order to make this gateway clear, precise and easy. Perhaps the Government will say that the provision is all right as it is and that it will all be made clear in the regulations. I would ask my noble friend not to respond with such a simple answer. If he looks to the right, the left or a long way ahead, he will see that his view that everything can be decided in regulations and that everyone will in some way be aware of what is in the regulations is being undermined.

I take it that my noble friend has taken to bed with him the report of the Better Regulation Task Force, Employment Regulation: striking a balance. I am sure that he knows it by heart. In some ways the task force is a strange body. It is composed almost entirely of employers. Only one trade union general secretary is included. The entire terms of reference of the task force are designed to view the position from the point of view of the depressed employer. There is nothing about trade unions and how regulations might hurt them. The task force is concerned only with how the provisions in various employment protection Acts might affect employers.

Despite that, employers say that they find the provisions blindingly complicated. They have made various suggestions, to which I shall return later in our discussions on Report, for making things easier. However, all those suggestions suit the employers. Reading the report, I am bound say, "What about the workers?". Surely it would be a good thing for the Government to point to a simple gateway that includes the explanations we have proposed in our amendment, rather than bury them in a set of regulations. It would be better if they were set out on the face of the Bill. The tick-sheets should be circulated with the explanations set out, stressing that there is no desire whatever to make this part of the Bill blindingly complicated. I beg to move.

3 p.m.

Lord Gladwin of Clee

My Lords, I am afraid that I am unable to direct the attention of my noble friend the Minister to the column in Hansard that reports our debate in Grand Committee. However, perhaps I may remind him that we were told that the draft of the new IT1 form would be available for us to see before—I hoped—we reached Third Reading. Concern has been expressed about the demise of IT1; indeed, the kind of matters described by my noble friend Lord McCarthy are causing concern. My answer has been to reassure myself that we would see the draft beforehand; that is, before we reach the end of this stage of the Bill. I asked for an assurance, and I received an affirmative answer. When we were told that the parties would see it, I asked whether we would also see it. I was told, "yes". Can my noble friend tell the House when we shall see the draft?

Lord Wedderburn of Charlton

My Lords, I should like to raise two simple points in support of my noble friend's amendment. First, if only the prescribed form in some new shape is permissible to begin an application to an employment tribunal, there is a fear that the process will drift into complexity. That is not my fear alone; it is the fear of many chairs of tribunals. It was also the fear of Judge John Prophet, who wrote a long memorandum on the subject about which my noble friend the Minister will be aware. He will know the way in which the judge put that fear in the memorandum. The prescribed form must not become something that is required of the worker in the form of a letter before action.

Secondly, Clause 25 is centrally important to the Bill, because it is the hinge upon which it seems other parts of the legislation will be brought into effect. When we turn to Clauses 29 and 32 and Schedule 2, we see that there are limitations upon the ability of workers to present claims to employment tribunals, unless they have satisfied certain conditions. It is our contention that those conditions are unfair, but we shall debate those issues at a later point.

Quite apart from that, it has often been suggested that the evidence as to whether workers have complied with those conditions will be found in their answers to the new ET1. If that is the case, they will be asked to state all sorts of things of the new ET1 that will lead them into questions that this amendment would lean against—not least questions of law. Therefore, this is an important amendment, not only because of its effect on Clause 25 but also because of its effect on the entire structure of the Bill.

Lord McIntosh of Haringey

My Lords, I shall try to deal with the many issues that arise under this amendment. Perhaps I may, first, deal with the issue of what is to be required. We shall be making transitional arrangements so that, for a period to be decided, applications not on the prescribed form will be accepted. After that, the use of the form will be compulsory and applicants who submit claims that are not on the new form will be asked to complete it. If they apply by letter, by postcard, or whatever, applicants are already sent a form.

Standardised application and response forms are designed to encourage parties to convey at the outset the information that is needed to understand and evaluate their case. Around 99 per cent of people already use the existing form, and the new form will be widely available. The guidance on completion of the form will be closely tied to the form itself and made available with it, so that anyone using any other document would, in any case, be at a disadvantage.

I must say that that is in contrast to the existing form, a copy of which I have in front of me. It seems to me to break many of the rules of questionnaire design from which I spent most of life earning my living. Noble Lords may like to imagine Question One, which reads: Please give the type of complaint that you want the tribunal to decide—for example, unfair dismissal, equal pay … a full list is available from the Tribunal Office . If you have more than one complaint, list them all". To insist on people answering something and then expect it to conform with a list that is not supplied, with the form, seems to me to be a breach of one of the most basic principles of questionnaire design. However, we believe that a better designed form which is capable of being electronically read will do away with a lot of otherwise wasted effort at tribunals. It will also be beneficial for ACAS, which uses the information.

I said that on the expiry of the transitional period the form will be compulsory, but it will be mandatory to answer only a small number of key questions. There will be other questions which it will not be mandatory to answer. The mandatory questions will include details of the parties and details of the claim. These are already set down in the current rules. They may also possibly include dates of employment and pay—both of which are already on IT1—and, if the case is one of unfair dismissal, whether the applicant has found other work.

In addition—this is where the concerns arise—there will be two or three simple questions on whether the required steps under statutory grievance procedure have been taken. For example—I am not using the exact words—"Have you written to your employer about your grievance?", which could be answered by means of a tick box; and., "When was this done?" There is nothing technical involved in these questions. They are necessary if tribunals are to be able to draw the attention of applicants to a possible omission and to give them a chance to rectify it.

The amendment seeks that the form should not cover questions of law or questions outside the direct experience of the applicant. Clearly the two or three simple questions on the required step do not fall into the categories set out in Amendment No. 27. However, it is important to stress that only a tribunal will be able to decide whether to admit a claim where it is doubtful that the admissibility criteria have been met. This is an issue for judicial determination. Where possible, tick boxes will be used. I do not see anything wrong with that.

The aim of all this is to improve form IT1. I know about Judge Prophet's views but perhaps I may cite Colin Milne, the president of the Employment Tribunals in Scotland. In his response to the consultation paper he said that the current forms—that is, IT1 and IT3—produce inadequate information. They should give more information from the parties so that the issues are clearly focused before the hearing. At the moment, it is all too common for an applicant merely to put down something such as, "I was unfairly selected for redundancy", without stating whether this was because the criteria were unfair or applied wrongly, or because there was no consultation.

If tribunals get this information sooner, they can process cases more quickly. At the moment they need to send the parties orders for further and better particulars of their case. It is estimated that the total number of interlocutory orders would be reduced by some 25 to 30 per cent. a very significant reduction, which would free resources for other work.

The new application form should help people, not deter claims. All it will seek is key information which will come into play during proceedings in any case. It would be helpful for everyone if this were set down at the outset.

A key aspect will be the supply of comprehensive guidance on how to complete the form. At the moment, for all practical purposes, people are given a blank sheet of paper when it comes to the highly important point of setting down the details of their claim. That is what the reverse of the form is for. It is the most unhelpful form of form, if I may put it that way, that I can possibly imagine.

Respondents will be obliged to address fully the more detailed claim provided by applicants. As a result of doing this, the issues raised by the case will be immediately identifiable—far sooner than they are at the moment. Chairmen would have some information upon which to work to case-manage the issues. It would also provide more information to ACAS and thus could lead to more effective conciliation.

I was asked by the noble Lord, Lord Gladwin, about a commitment that a copy of the new form would be available. I am not aware that I gave any commitment on that point. Officials can find no reference to it in Hansard. If I am wrong, of course, I am very sorry.

It is the case that there will be full consultation on the form. It is, among other things, in the remit of the Employment Tribunal System Task Force to which I have referred. In my experience it is not normal for forms of this kind to be the subject of parliamentary scrutiny. If by any chance anything is available that can be shown to the House before Third Reading, it will be. However, I am not conscious that it can be or will be.

The application form will be simple to complete. It will require only information that the applicant will have to supply anyway during the course of the proceedings. It will, I hope, be better designed, to make it easier to complete than the present form. It will enable the applicant to give a better account of his case. There is certainly no intention of deterring applicants by asking numerous questions or complicated questions about the use of procedure or any other matter. Indeed, if we were to try to do so, I suspect that we should fall foul of human rights considerations. I hope that these amendments will not be pressed.

Lord Wedderburn of Charlton

My Lords, before my noble friend sits down, did I hear him aright? It is difficult to discuss the new form without seeing at least a skeleton of it. Is he saying that the new form will provide sufficient information for the number of interlocutory order hearings to be reduced by an estimated 25 to 30 per cent? If that is the case, the amount of information provided by the form will surely be quite extensive.

Lord McIntosh of Haringey

My Lords, I did not say interlocutory hearings; I said interlocutory orders—which is a very different thing. An interlocutory order is sending the parties orders for further and better particulars of their case. In other words, it is an inquiry. It is very different from a hearing.

Lord Gladwin of Clee

My Lords, before my noble friend sits down, do I understand him to say that the new ET1 and ET3 forms will be the subject of consultation? I assume that that means consultation with the parties. When will the parties have access to the draft new ET1 and ET3?

Lord McIntosh of Haringey

My Lords, I can answer the first question. Yes, of course, there will be consultation with interested parties. That will include the CBI, the TUC, the Law Society and the tribunal judiciary. As to when that will occur, I do not have the information now. If I can get hold of it, as soon as I do so I will write to the noble Lord and others who have taken part in this debate.

Lord McCarthy

My Lords, I must be very careful what I say. I find the noble Lord's speech alarmist—it alarms me. In the first place, he says that at some time in the future the application forms will become compulsory. Shall I tell him why we do not want them to be compulsory? It puts people off.

At the moment, you can send a postcard or a letter. I know that the process goes on and the applicant is sent a form; and may be sent another form, and another. Of course that is the case. But if you want to encourage people to come into the system, if the idea is one of "catchee monkey"—to encourage people who may be getting fed up with their employers giving them the same old answer—they should not be discouraged. That is why we do not like the 28-day provision. In a way, it is the most discouraging aspect of the Bill. When you are told that you have to fill in the form and the whole process becomes compulsory, people are discouraged. Employers may say to people: "Of course, you know you will have to fill a form in. God knows how many forms you will have to fill in. They will all be compulsory". These are the things that we do not like. A few weeks ago we received the answer that this would not be compulsory. We are now told that, after a time, it will be. That is slightly alarmist.

Nobody would ever say that the dear old ET1 was perfect, but nobody complained about it. People found a way of working it. It went on for many years and it seemed to work. I do not suppose that the Minister or I would disagree that it is not the kind of thing that WIRS would put out, because they are professional and have tick-off sheets and all kinds of damned things. It takes 45 minutes to fill in a WIRS form. ET1 is not perfect, but it seems to work. If the Government want to change it, they ought to do some research before introducing their form on whether it works and whether people understand it. Nothing like that is suggested here. I find that alarmist.

Then the Minister says that there are the steps relating to the new statutory procedures, some of which are outside the restrictions that we will put into our amendment. I shall do some research, but I am certain that everything in our amendment was said or agreed to by Ministers, yet now they tell us that they want to put in something that is outside our amendment. They have not told us what it is, but it is outside our amendment. I find that alarmist.

Then the Minister says that we are going to get more information. That is important. It is possible to ask for so much information that everybody gets fed up. The idea may be to get so much information that we never need to have a hearing because the tribunal can get together and make a pre-hearing assessment. Everything would already be down on paper. The hearing would become a mere formality, because we would have got so much information out of the parties. Employers are better able to fill in the information because they have their organisation. On the other side there is just a man at his kitchen table. The idea of using the application form as a way of getting enough information to take a decision—that seems to be what was being said—is particularly alarmist.

Finally, and most alarmist of all, the noble Lord, Lord Gladwin, may have misremembered or I may have misremembered. I thought that the Government had said that they would give us a sight of the form. I do not give a damn if they did not say that, because they ought to give us a sight of the form anyway. I do not give a damn if they say that they have never done it before. What about the resources of the Parliamentary Question? We have used the resources of the Parliamentary Question quite effectively on the Bill. We ask the Government what they are going to put on the form. Suppose we were to ask them tomorrow. They would say that they had not decided yet. Suppose we kept on asking and used not just Oral Questions, when Ministers are up for only a minute or two, but Written Questions. Could not Ministers reply to a Written Question by giving us the words on the form? That is a good idea. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Clause 26 [Determination without a hearing]:

3.15 p.m.

Baroness Miller of Hendon

moved Amendment No. 28: Page 34, line 33, at end "if it is agreed by the parties to the proceedings The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 29 and 32. Clauses 26 and 28 deal with two aspects of tribunal procedure—the determination of a case without a hearing in Clause 26 and pre-hearing reviews in Clause 28. I do not often comment on purely drafting matters, but. I find it somewhat surprising that these two closely connected clauses are not juxtaposed, but are instead separated by Clause 27.

Amendment No. 28 would amplify the power of the tribunal to determine proceedings without a hearing. There is ample precedent for such a procedure in planning appeals, for example. We certainly do not dissent from the use of such procedure to save time, trouble and expense in employment tribunals cases, in which the amounts involved are frequently comparatively small or the issues involved are often very simple. However, no one should be deprived by the stroke of a tribunal chairman's pen of his day in court and the elementary human right to face his opponent. Hence, I have proposed that a hearing shall be dispensed with only with the consent of both parties.

When this matter was discussed in Grand Committee, the Minister pointed out that the Explanatory Notes dealt with the matter at least to his satisfaction. The notes state: It is intended that the circumstances in which a case may be determined in this way would be where both parties have given their consent by signing a form … following independent advice". I agree that this will be a very satisfactory procedure. However, having given the Minister's response some thought, as I said I would at the time, I have come to the conclusion that the Government's good intentions, which I certainly do not doubt, do not really go far enough.

I do not think it is sufficient for this important provision limiting a party's right to an oral hearing to be defined simply in a piece of secondary legislation. There is nothing to prevent a less benign Secretary of State from later modifying that regulation by restricting oral hearings to cases above a certain monetary value or within some other criterion. It is true that any modification of the regulation which the Government say they now propose would be subject to parliamentary scrutiny, but, as we all know, secondary legislation receives only a perfunctory examination and cannot be amended. It can be either accepted or rejected, but that is all. I do not believe that the Minister should insist that this safeguard should not be written into the Bill but left to regulation. After all, the amendment simply includes in the Act the Government's stated intention.

I turn to Amendment No. 29, which gives the tribunal power to adjudicate on a case in which one party has failed without reasonable excuse to attend the hearing. I ask your Lordships to note the words "without reasonable excuse". In Grand Committee, in reply to the same amendment, the Minister devoted a great part of his reply to a situation in which a party has, in his words, failed to engage in the process in any way".—[Official Report, 18/3/02; col. CWH 168.] The Minister rightly pointed out that that situation is covered by the Employment Tribunal Rules of Procedure. However, that is not the situation that I am concerned about and am trying to talk about. I am talking about cases in which a party files a claim or notifies an intention to defend a claim and does whatever is required right up to the date of the hearing but then simply fails to turn up to the hearing.

In appropriate circumstances—namely, in the absence of a reasonable excuse—the tribunal should have the power to determine the case in favour of the party who has taken the trouble to turn up. It is all too easy for a party either to launch a claim or to file a defence with the single malicious motive of inconveniencing the other party, or a party who has been involved in a case may simply think better of it and fail to attend the hearing. The point is that if the tribunal cannot arrive at the obvious conclusion that the absence of the defaulting party is an admission of the other side's case, then the party who has attended will be put to the further trouble and expense of going through his whole case before the tribunal. What is to be the conclusion of such a pantomime? Is the tribunal, having listened to the outline of the case and perhaps to the evidence, going to act as the absent party's representative and dismiss the claim or defence? Of course that is not going to happen.

In arguing against this amendment, the Minister acknowledged that illness or absence abroad might be "a reasonable excuse". But then he said that strong business reasons on the part of the employer, especially in a small business, were unlikely to be accepted as a reasonable excuse. With all due respect to the Minister, I believe that the reasonableness of an excuse should be a matter for the tribunal to decide on a case-by-case basis. I do not think that it should be for the Minister to pre-empt what the decision should be in every case.

The Act and the regulation do not indicate what the tribunal is to do if one party fails to turn up, perhaps after several adjournments causing trouble, expense and waste of time or delay to the other side. The Minister said: There is no precedent for the determination of a case without the consideration of any evidence whatever.—[Official Report, 18/3/02; col. CWH 168.] I believe that he is mistaken. When sitting as a magistrate I found that on several occasions cases were dismissed when the prosecution simply failed to turn up, and certainly when they failed to turn up on more than one or two occasions. Of course, I accept that dealing with defendants in criminal cases is a different matter. Judges and magistrates have power to order the arrest of an absent defendant and to have him physically brought before the court!

Judges in civil cases can and do determine a case in the absence of one of the parties and are assisted by the written documents, as will be the tribunal as a result of the documents that have to be provided to it. There is no reason why a party who has respected the tribunal by arriving at the hearing with his witnesses and perhaps with lawyers or trade union advisers should have to go through the whole procedure of proving a case that the other party's absence implies is no longer disputed.

I turn to Amendment No. 32. Clause 28 provides for a pre-hearing review of cases. That is an excellent procedure adopted from the civil courts. It can save a great deal of time and trouble by ensuring that the issues are all clarified and that each party is under no misunderstanding as to what evidence he is expected to produce, what disclosure he is required to make to the other side in advance of the hearing and, not least of all, so that a judgment can be made as to the probable length of the hearing.

But there is another power which it is desirable that the tribunal should have at this relatively early stage and when the costs, time and effort that go into preparing a case have not yet been incurred; that is, when it is apparent to the tribunal, on looking at the papers before it, that the case of one or other party is absolutely untenable. I agree with what the Minister told the Committee when he said that, we do not want tribunals … to hear evidence at pre-hearing reviews".—[Official Report, 18/3/02; col. CWH 169.] But applying this power in rare cases would not involve making some decision on the facts as that is obviously a matter for a full hearing when the evidence can be properly tested.

The analogy is the Civil Practice Rule 24 when the court has power to give summary judgment for a plaintiff when the defence offered by the defendant, even assuming that all the facts alleged by him are true, is not a defence in law. Noble Lords will recall that what we are discussing here is not merely an amendment to this present Employment Bill with its limited application to paternity leave and pay and adoption leave and pay. Clause 28 is an amendment to the whole of the Employment Tribunals Act 1996 which affects the procedure of every employment tribunal in every kind of case, not merely those brought under this Bill.

I shall mention a couple of exaggerated situations to try to show what I have in mind. Let us imagine a disgruntled employee who shoots the managing director of the firm which employs him, sets its premises on fire, and drives off in one of its vehicles which he then for some reason deliberately crashes, for all of which actions he is sent to prison. Is it seriously suggested that an employer should have to go through the whole rigmarole of defending proceedings for wrongful dismissal? To be even-handed, let us imagine that an employer's defence to a claim is that he has diplomatic immunity and is exempt from the jurisdiction of the tribunal.

Of course, I accept that those are totally exaggerated situations but they illustrate the fact that in some rare cases there may be valid and reasonable grounds to dismiss a claim or defence out of hand. The civil courts occasionally dismiss claims on the grounds that they show no reasonable cause of action, and dismiss them as obviously invalid. Only this morning, I reminded noble Lords that the Minister told the other place that tribunals should follow civil procedure wherever possible. I urge the Minister to accept the amendment or at least to consider it. It would make matters much easier and cheaper in these very rare cases. I beg to move.

3.30 p.m.

Lord Sainsbury of Turville

My Lords, I shall take each of the amendments in turn because they deal with slightly different issues.

I start with Amendment No. 28. We return to this question once more. I had hoped that my explanations in Committee had satisfied the noble Baroness as to our intentions with regard to the clause, but I am happy to offer further reassurance. It is the Government's intention, as has already been stated both in this House and in another place, that both parties should consent in writing before the tribunal can proceed with a determination without a hearing. That is clearly laid out in the Explanatory Notes accompanying the Bill.

If we were to accept the amendment, however, there would be no flexibility in the system whatever for one party to withdraw his or her consent and for a hearing still to go ahead. It might seem to the noble Baroness that there are no such circumstances that might be desirable but I would like to explain the situation. If the clause were to be implemented with the amendment, the tribunal would be unable to deal with cases where one party withdrew his or her consent at the last moment for tactical reasons. If that were to happen, under the amendment tribunals would be unable to proceed with the determination as planned and would have to schedule a full hearing, which, given the pressures on the system, could be some weeks away. All the while, the other party, who is genuinely seeking a determination, incurs costs and suffers stress. If we were to accept the amendment, no reasons for withdrawal of consent would have to be given—a party could simply use the provision as a delaying tactic, perhaps hoping that the other party would give up his claim or defence in the face of such a delay.

It is important that parties should consent to a determination without a hearing—on that we are agreed. Neither party should be able to force the other into such a determination if that is not desirable. However, the parties' right to a fair trial must he protected. If a party gives his or her consent and subsequently—in good time before the determination—decides that a full hearing would be preferable because, for example, circumstances surrounding the case had changed, it is reasonable for a full hearing to be scheduled. However, if the consent is withdrawn at the last moment and without good reason, we believe that the tribunal should have the discretion to decide whether or not to continue with the determination as planned. That does not, by any means, indicate that the regulations will be drawn up to allow for the withdrawal of consent to become a regular occurrence, but there should be sufficient flexibility within the regulations to ensure that the right to a fair trial is protected but also that parties cannot readily abuse the system by withdrawing their consent late in the day. Such detail is, in our opinion, better placed in the regulations than on the face of the Bill.

I now turn to Amendment No. 29. Again, I am sorry that I was not able to persuade the noble Baroness in Committee that she should withdraw that amendment. I think that we would all agree that it is undesirable to have hearings that one party fails to attend with little or no notice and no reasonable excuse. The amendment seeks to have the tribunal automatically find against a party, without the hearing of any evidence or the consideration of any submissions, where the tribunal does not judge a party's non-attendance to be because of a reasonable excuse. That goes even further than the current procedure for handling uncontested cases, where the applicant must still appear before the tribunal and have the evidence considered although the would-be respondent has never engaged in the defence of the claim.

Moreover, once the provisions in the clause have been implemented, the applicant will also be able to ask that the claim be determined without a hearing through paper submissions. There will, crucially, always be some consideration of the merits of the case before a determination is made.

It would be unprecedented for an employment tribunal to determine a claim without any consideration of its merits. I stress that there is no precedent in employment tribunals for that. I do not believe that any comparison with a civil court, where a case is dismissed because there is no legal justification for it, can be made with the matter that we are discussing here.

As I said, it would be unprecedented for an employment tribunal to determine a claim without any consideration of the merits. It is, at best, a strange concept that a party should be deemed guilty in his absence without any consideration of the facts of the claim which he either submitted or had submitted against him.

Let us take, for example, the small-business owner who, for what he considers to be good business reasons, fails to attend a hearing. Under this amendment, if a tribunal were not to agree that his reasons were reasonable, it would find for the applicant without looking into his case at all. I hope that noble Lords will agree that the determination of a claim without any consideration of the merits of the case is undesirable.

I now turn to Amendment No. 32. Again, a similar amendment was tabled in Grand Committee. The amendment requires tribunals to dismiss proceedings unless they have a reasonable prospect of success. As I said in Grand Committee, that goes too far. It would allow no room for use of the existing deposit procedure, which is still intended to be the main weapon against cases that appear to have no reasonable prospect of success. Striking out cases is intended to be used only in relation to hopeless cases. Again, to take the somewhat Byzantine example given by the noble Baroness, I believe that such a case could be seen to come under the category of "unreasonable" or "vexatious", and so on. Therefore, I do not believe that a change is required here.

Nor do we want tribunals to have the power to hear evidence at pre-hearing reviews. Such reviews are intended to be relatively speedy, based on consideration of the contents of the originating application and notice of appearance, any representations in writing and any oral argument advanced by the party. The review would take longer if evidence had to be heard, thereby making it more like an ordinary hearing. On the basis of the arguments that I have given, I hope that the noble Baroness will withdraw the amendment.

Baroness Miller of Hendon

My Lords, I accept the explanations given by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Clause 27 [Practice directions]:

Baroness Miller of Hendon

moved Amendment No. 30: Page 35, line 8, at end insert— (4) No direction or practice direction made under this section shall be made until the President has consulted, so far as is practical, with employers' and employees' organisations and persons who have evinced an interest either in the operation of employment tribunals generally or the issue being regulated specifically. (5) No inadvertent failure to consult, nor any omission of any potential consultee, under subsection (4) shall invalidate any directions made under this section." The noble Baroness said: My Lords, I am concerned about consistency in the practice of different tribunals. Since the late 1940s or 1950s, when tribunals were introduced extensively into the judicial system— although, of course, they existed before that time—the numbers and powers of tribunals have increased considerably. Today, they cover a wide range of subjects from rent control to employment matters, equal opportunities and so on.

I believe it is important that, like the regular civil and criminal courts, they all operate to the same, consistent procedure. That is my view not only in relation to tribunals which adjudicate on the same subjects but also in relation to those which adjudicate on differing topics. The ideal situation would be for a common set of rules and procedures to be laid down by statute and secondary legislation, as is the case, for example, with the Civil Procedure Rules, which regulate the civil courts.

I realise that parliamentary time is not readily available to lay down a common set of rules and practice directions. However, until that ideal time arrives, it is important that, so far as possible, procedures are consistent between tribunals which operate under the Bill. I want to point out to the Minister that it has been the practice of his noble and learned friend the Lord Chancellor and the noble and learned Lord the Master of the Rolls and their respective predecessors to consult the legal profession or their representatives before introducing major changes in practice and procedure.

That was particularly the case when the noble and learned Lord, Lord Woolf, carried through his major overhaul of the Civil Practice Rules a few years ago. It is important that the president, in setting the tribunal rules, consults interested parties so far as possible. That is the purpose of subsection (4).

Subsection (5) is a saving provision. No one should be able to attack the procedures on the basis that a person who considered that he should have been consulted was not, for whatever reason. I shall be most interested to hear from the Minister what steps will be taken to ensure that new practice directions, as distinct from those which are already in use under earlier legislation, will be the subject of appropriate consultation.

I should also be glad to hear from the Minister whether in the future—however distant—the Government will consider providing the drafting resources from all the departments concerned to produce a common set of tribunal practice rules. I beg to move.

Lord Sainsbury of Turville

My Lords, consultation is extremely important in these matters. I hope I can persuade the noble Baroness that we are taking a commonsense and pragmatic approach to this issue. Like its predecessors in the other place, this amendment seeks to force the tribunal presidents to consult in all circumstances rather than to rely on their common sense.

There may, for example, be a large number of applications, running into thousands—Perhaps even tens of thousands—arising out of a judgment of the European Court of Justice. Those affected may be spread over a number of different workplaces involving different employers. They may, and indeed almost certainly will, involve major problems for the tribunals in terms of handling the cases in a way that is most efficient and also meets the needs of the parties concerned. There will he a need to ensure that the cases are handled consistently. There may be an argument for hearing the cases in one location.

Accordingly, the president may decide to issue a practice direction about such cases. He may very well wish to consult, but it may he more sensible to consult just the parties concerned and their representatives rather than to embark on a more general consultation. It would seem more sensible in this situation to consult the parties and their representatives direct without involving other organisations.

Sometimes the president may wish to issue a practice direction in order to ensure a best practice approach. There will be occasions when he may feel it desirable to consult to ensure that it is indeed best practice. On other occasions it may be plain what constitutes best practice, not least because there may have been complaints about the practice in some regions which the practice direction is eliminating. Where that is so, there really is no point in consulting. Indeed, if a practice direction is required to deal with a problem as a matter of urgency, a statutory requirement to consult could diminish its effectiveness.

The different situations that may arise mean that it is inadvisable to constrain the presidents by requiring them to consult widely on every practice direction. I am sure that they will recognise that there will be times when employer and employee organisations and others will have a useful contribution to make and they will consult them. But it should be left to them to make up their own minds, as is already the case with the president of the Employment Appeal Tribunal. Further, it is worth noting that there was overwhelming support in consultation for this proposal and in particular that the Council on Tribunals in its favourable response did not suggest the need for the presidents to consult.

I can see no reason why anyone else would draft the directions. That should be done by the presidents themselves. For the reasons that I have given we cannot accept the amendment.

Baroness Miller of Hendon

My Lords, I was not suggesting that the presidents would not use good common sense. I am sure that presidents of all tribunals would use good common sense. My point was that I believe that there should be consistency between the whole array of tribunals so that when people appear before a tribunal they know what is likely to happen. Clearly, the Minister does not agree. If he did, he would suggest that at some time in the distant future we may get people together who will come up with a set of rules to which everyone can agree. However, I do not want to burden the Minister with thoughts of the distant future when he is certain that he is right at the present time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28[Pre-hearing reviews]:

Lord Wedderburn of Charlton

moved Amendment No. 31: Page 35, line 14, at end insert "but in such review proceedings the tribunal shall not strike out an originating application or notice of appearance save in the circumstances set out in paragraphs 4, 7 and 15 of the Employment Tribunal Rules of Procedure (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (S.I. 2001/1171)) The noble Lord said: My Lords, striking out has been mentioned in recent discussions on previous amendments, so Amendment No. 31 appears more important than we previously thought. The easiest way to explain quickly why we have tabled the amendment again in a slightly abbreviated form is because in our view pre-hearing reviews are peculiarly not suited to striking out, which is a nuclear weapon as far as an applicant is concerned and destroys his cause of action altogether.

On 13th December 2001, the Minister of State, my honourable friend Mr Alan Johnson, said, We intend to amend the employment tribunal regulations to include a strike-out power at the pre-hearing stage". That point worried us very much. Our anxiety was slightly assuaged by his counterpoint in the case he put forward when he added that the Government do not envisage the power being used to a huge degree: We do not envisage it being used other than in extreme cases". [Official Report, Commons, Standing Committee F, 13/12/01; co1.113.] But when we looked again at the Explanatory Notes, which were repeated when the Bill came to this House, we found that there was constant reference to striking out of very weak or weak cases. For example, they state, Although rule 15 of the main Employment Tribunal Rules of Procedure permits the strike out of certain cases, including weak cases"— I interpose that it does not include weak cases— it is arguable that the current rules do not allow the strike out of weak cases at pre-hearing review". It is necessary to say immediately—and this is a matter of very great importance if pre-hearing reviews are to have power, even in extreme cases, to strike out—that Rule 15 regulations give to the tribunal the power to strike out in cases where the application is vexatious, unreasonable, or misconceived which may be generally described as disclosing no cause of action.

When the Explanatory Notes insist three times that it would include weak or very weak cases and refer to a party to a case which was judged to be wrong in its interpretation of the cause of action, our anxiety returned. No pre-hearing review can judge that the applicant is wrong in his interpretation of his case as opposed to disclosing no cause of action, which is a fundamental distinction, without hearing evidence.

The Minister has just repeated that the tribunal does not want to hear evidence. It was therefore with very great interest that we heard the reply of my noble friend Lord Sainsbury on 18th March. I cannot move this amendment without quoting what he said, which was, Rule 15, to which the amendment refers, provides power to strike out an originating application or notice of appearance at any stage of the proceedings on the grounds that it is scandalous, misconceived or vexatious, or that the proceedings are being conducted in a scandalous, unreasonable or vexatious manner. As I have already said, we expect proceedings to be struck out only when cases are hopeless; that is to say, those at the extreme end of the spectrum covered by the terms 'vexatious', 'misconceived' and so on. I stress here the word 'misconceived' because it is those cases to which the Explanatory Notes refer". [Official Report, 18/3/02; col. CWH 173.] I immediately interpose to say that it is not only those cases to which the Explanatory Notes refer, nor indeed the other documents which preceded this Bill such as Routes to Resolution. There is constant reference to weak cases. Unless the Government make it absolutely clear that strike out is not to apply to weak cases, but will only apply to the cases which are already in rule 15, namely, scandalous, misconceived and totally unreasonable and not disclosing a cause of action, there will be constant worry. We all hope to see a draft of the regulations any day before Third Reading. In that event we shall see whether it is so or not. But there is a great worry. The Government began by saying that there were going to be wide powers for strike in the regulations. They then say that it applies only to extreme cases. And then on 18th March my noble friend Lord Sainsbury said that it referred to the cases at the extreme end of the spectrum covered by the terms "vexatious" or "misconceived".

I add that he also said: In the light of Clause 28, it will in due course be necessary to amend Rule 7 of the main employment tribunal rules of procedure to allow for strike out". I should like him to tell us what that Rule 7 amendment will be. I do not understand what that implies. He continued: The new rule will need to specify when the strike out power may be exercised".—[Official Report, 18/3/02; col. CWH 174.] Why? Why not say that it will be exercised when Rule 15 says that it will be exercised; that is, to the cases at the "extreme end of the spectrum"—his words not mine—which are vexatious, misconceived and so on? Therefore, what is the objection to our amendment? He may say that it will all be clear in the regulations. This is such an important point that any hint that the power to strike out could be extended should not be left to our understanding of the regulations. It should be made clear on the face of the Bill.

We would welcome the Government bringing forward another amendment that makes that clear. I tabled the amendment in view of what was said in Grand Committee. I have not yet had a reply, which makes me totally reassured that the power to strike out is not to be extended. If it is not to be extended, why use Clause 28 in order to introduce new regulations? I beg to move.

Lord Sainsbury of Turville

My Lords, this amendment is concerned with the scope of striking out a claim or defence at a pre-hearing review. That is an issue we had intended to address in regulations. The clause paves the way for that.

There was concern expressed in Grand Committee, which has today again been expressed by my noble friend Lord Wedderburn, that cases should not be subject to striking out merely because they are weak. His concern arises because the Explanatory Notes uses the term "weak cases" in relation to the strike out powers in Rule 15 before saying that the Rule 15 powers arguably do not apply to pre-hearing reviews. Of course Rule 15 does not actually use the word "weak", which was merely intended to be a shorthand description of the actual terms used—"scandalous", "misconceived" or "vexatious".

I think that in practice we are in broad agreement with the spirit of the amendment as we envisage that striking out will occur only rarely and that the current deposit procedure will remain the main sanction. We have no intention to widen the grounds in the regulations on which tribunals may currently strike claims out, nor do we intend that the grounds for strike out at a pre-hearing review should be any wider than the existing grounds. Since evidence is not generally heard at a pre-hearing review, it would be absurd if tribunals had greater scope for strike out at that stage than they currently have to strike out at other stages of the proceedings.

As I say, we intend to achieve the intended effect of the amendment through regulations. However, I am prepared to consider whether it is possible to return at Third Reading with an amendment which encapsulates the spirit of this one, if not its exact wording. Our Parliamentary draughtsman will of course have his own views on how to give effect to that spirit. I hope that, in view of this undertaking, the amendment will be withdrawn.

Lord Wedderburn of Charlton

My Lords, I am most grateful to the Minister for his remarks. We may not have scored any runs on the amendment, but at least we have not been run out. We look forward to his further suggestions at Third Reading. I meant to say in my remarks that, in the interests of the wider understanding of the public—who are agog with interest at our exciting debates—we were very grateful to him for all the details on deposits and the few deposits which have occurred in recent years that he gave us in Grand Committee. Those statistics were most useful in other respects. What he has said today is most encouraging. We look forward to something on the face of the Bill at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Lord McCarthy

moved Amendment No. 33: After Clause 28, insert the following new clause— "DRAFT OF REGULATIONS Not less than 84 days before—

1. (a) making regulations, or
2. (b) prescribing requirements in relation to any form or matter,

under this Part, the Secretary of State shall publish a draft of his proposals. The noble Lord said: My Lords, in moving Amendment No. 33, I shall speak also to Amendment No. 110. We have agreed that we should take them together because they say the same thing in different parts of the Bill. They commit the Government to publishing in draft all regulations and requirements 84 days before they are made, decided and presented to Parliament. That would give us ample time for the widest possible consultation before Parliament decides.

It may be asked: how we did we decide on that demand? Why do we ask for that in the Bill? There are several reasons, which I shall quickly skate over. We have complained, as people complained under the previous Government, about the long history of the use of regulation. I remember the noble Lord, Lord McIntosh, and I complaining about what the Conservative Party did with its mania for regulation. So there is a long history of people complaining about regulation. There are controversial parts of the Bill that almost all depend on regulation. So the regulations are critical to what the Bill means.

Secondly, we feared in advance of Committee that we would not be able to change much in Committee—perhaps we were rather cynical—so we tabled a version of the two amendments in Committee so that the Government could say whether they agreed with us about the need for advance regulations. The Government were not prepared to accept the amendments, but we were glad that we tabled them, especially when the noble Lord, Lord Sainsbury, rose to speak on 18th March. I apologise that I must read extensively from what he said—indeed, the greater part of my speech consists of reading extensively from what he said. He said, first:

The Government … intend to conduct a wide public consultation on drafts of the regulations to … ensure that the regulations achieve clarity and are comprehensive without being over-prescriptive. In particular, there will be pre-consultation with such people as the tribunal judiciary, ACAS, employer and employee organisations and employment lawyers. Therefore"— this was critical from our point of view— those most affected by the regulations will be made aware of what we have in mind and will have ample opportunity"— I repeat, ample opportunity— to comment before the regulations take effect".—[Official Report, 18/3/02; CWH 182–3.] We were pleased about that.

My noble friend Lord Wedderburn stressed the need to go beyond the usual channels in this case because of the number of workers and employers affected and the need to publish a draft as well as to place documents on the Internet. He remarked that he had searched around on the Internet to see what he could find. The Minister said with evident pride: perhaps I may say that I am disappointed in the exploration of the Internet by the noble Lord, Lord Wedderburn. If he had been exploring it thoroughly, the noble Lord"— here it comes— would now know that it is established DTI policy to place all consultative documents on the department's website. In fact, it is DTI policy to paste practically everything on the website". I hope that noble Lords will have noticed that we are not quite there yet; we are moving, but we are not quite there.

So we asked about publication in what I may call off-net form for those millions of people who cannot make head nor tail of the net. We also asked about the length of time for which they would appear, which was not yet clear, and the status of the draft—so that the draft would not be a fait accompli. That produced the following, final exchange. I said: I want to ask the Minister a direct question. What he said previously and what he says now will appear in Hansard. Is he telling me that in not less than 30 days"— that is what it seemed to be— he will publish a draft of his proposals for the regulations in Part 2 and Part 3 of this Bill on the web? The Minister, Lord Sainsbury of Turville, replied: The noble Lord could amend that; within 30 days, we will publish it. I asked: "Before?" The Minister replied: What I can say is that all draft regulations are published, or put on the website"— that is not an alternative, that is additional, I take it — for everyone to see. I cannot give an assurance on the timing of that at this point. There is a minimum of six weeks for doing that". Later, he corrected himself—twice: I believe it is 12 weeks, but I can certainly give the assurance on six".—[Official Report, 18/3/02; col. CWH 186–7.] We tabled our amendment on that basis. Naturally, we put in 12 weeks, because that is what the Minister said—12 weeks in which to publish a draft. Cannot the amendment be accepted?

We think that we are doing no more than saying what the Minister said: are we right? Will it be 12 weeks or six weeks? Will it be on the web and the non-web? Will it all be done before Parliament makes a decision? That is what the Minister said, and we are asking him to honour that. I beg to move.

Lord Gladwin of Clee

My Lords, I apologise to the House and to my noble friend Lord McIntosh of Haringey. As my noble friend Lord McCarthy would say, I misremembered the debate in Grind Committee. My memory was that it was about the draft publication of the new ET1 and ET3: in fact, it was about the publication of the regulations to which my noble friend Lord McCarthy has just referred.

Hansard reports a discussion between the Minister, the noble Lord, Lord McCarthy, and me. I said: There is some discussion about the way in which that document"— Routes to Resolution— was published. Many people do not have access to the Web. My understanding was that the draft regulations would be published in the way that I understand the phrase, 'being published'. That does not involve sitting at a computer; I want it in my hand. Am I going to get it at least six weeks—maybe more—before they become law? I think I am getting a yes". The Minister replied: The answer is yes".—[Official Report, 18/3/02; col. CWH 187.]

4 p.m.

Lord Sainsbury of Turville

My Lords, I am sometimes amazed at the consistency of the statements that I make. If there are cases of DTI consultation documents not being put on the net, I would be glad to hear of them. I know of no such cases, and none has been raised. It is our policy to do so, and it is an important part of the consultation, albeit that it is no substitute for the written document.

Amendments similar to this were tabled in Grand Committee. They had a 30-day period, rather than an 84-day period. In Grand Committee, I mentioned a 12-week period. I can now confirm that the code of practice on written consultation, which is binding on all departments, says that 12 weeks should be the standard minimum period for a consultation.

We intend to carry out a formal consultation on amendments to the employment tribunal procedure regulations and on other regulations that arise from Part 3 of the Bill. We intend the consultation document or documents to include at least a partial draft of the regulations concerned. I say "partial" because, in the document, we may want to consult on possible options. In those circumstances, it would not be sensible to draft the regulation or part of a regulation concerned until we had considered the consultation response. The consultation documents will be published on the DTI website and in hard copy form. Twelve weeks will be allowed for the consultation, in line with the code of practice that I have just mentioned.

With regard to the prescribed forms for entering an application or notice of appearance to an employment tribunal, the Employment Tribunals Service has already had informal consultation with a number of bodies such as the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission, the CBI, the TUC, the Law Society, the National Association of Citizens Advice Bureaux, the Small Business Council and so on. They will conduct further consultation in due course, and that will last at least 12 weeks. The proposed new forms will be available on the web and in hard copy form.

The amendments are, therefore, unnecessary, and I hope that, in view of what I have said, they will be withdrawn.

Lord McCarthy

My Lords, I am not alarmed by the answer but just a little concerned. The word "partial" was used. That may mean "not complete; only half there". I would not be happy with that because one might say, "It's partial so I am sorry you got nothing on Clauses 25, 31 and 33. It's partial, you see." I would not be happy with that.

The word "interim" would be all right. One might say, "We are writing things in in pencil because we have a consultation process and you may persuade us to do things a little differently.". However, the Minister did not say—

Lord Sainsbury of Turville

My Lords, I explained what I meant by "partial". I hope that I made it clear that there will be cases in which a number of options exist. Rather than drafting exact regulations to cover each option, which we believe would be a waste of time, we will consult on those limited cases by putting forward the options. When we have consulted and heard what people have to say, we will draft a particular regulation. In that limited sense, the measure would be "partial".

Lord McCarthy

My Lords, my noble friend Lord Wedderburn is growling a little so I shall pass by that. The Minister seemed to say that the consultation documents would appear on the website only. At least, I did not hear that there would be a sixpenny edition that even my noble friend Lord Gladwin could understand.

Lord Sainsbury of Turville

My Lords, I have said that in all cases the consultation documents will be published on the DTI website and in hard-copy form.

Lord McCarthy

My Lords, I did not hear that. I am going deaf! In that case, although the Minister will not accept our amendment, I am pleased to beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Sainsbury of Turville

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.