Employment Bill

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Mr. Hammond: What the Minister said goes to the heart of a problem that will crop up in many of our debates. A specific problem with paid representatives has been identified; he does not, therefore, think that the amendment is necessary. However, if there is a problem with paid representatives and no sanction is necessary against unpaid representatives, why does the Bill not refer to paid representatives? The Minister has given himself discretion in making regulations, and nothing limits the Bill to paid representatives.

My amendment was intended to give the Minister scope, should it be required, to make regulations that would allow the disbarring of representatives, paid

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and unpaid. I cannot understand, in spite of the Minister's two attempts to explain it, how the amendment would damage the existing system of unpaid representatives. I understand, but do not necessarily agree with, the argument that financial penalties against unpaid representatives might damage that system, but I cannot really understand the argument that the chance of being prevented from appearing in an unpaid capacity would undermine a system in which unpaid representatives are willing to appear and take their chance. The only penalty might be that they could not appear again for a period.

I understand the Minister's point about the possible inappropriateness of extending the provision to employment appeal tribunals, and I accept that it is almost unheard of for people not to be legally represented at employment appeal tribunals. I also accept that the amendment would perhaps have been better drafted if it had been specifically limited to those who were excluded by regulations from a potential award of costs against them. Therefore, in view of the Minister's strong resistance to the amendment, I shall shortly seek to withdraw it.

Alan Johnson: I do not want to take up too much time, so I will deal with this point in an intervention. Yes, we will issue regulations. The hon. Gentleman is right—the Bill contains nothing about paid representatives. However, we have always made it clear that that is who the regulations will deal with.

There will be an opportunity to discuss the matter because we will hold consultations on the regulations. I made a mistake before, and said that the regulations would be subject to the affirmative procedure; as with all employment tribunal rules, they will be subject to the negative procedure. Nevertheless, we will consult on them, and, if Members want one, there will be a debate on them. To offer a glimmer of something helpful to get the week off to a better start than we already have, perhaps the hon. Gentleman's case should be made in such a debate. We have not been persuaded, in current consultations, that there is even a problem that needs tackling. There will be an opportunity for further consultation.

Mr. Hammond: The Minister makes my point for me, because, sadly, there will be no opportunity to make that case when consultation begins on the regulations. If we do not include a power to introduce a provision allowing the disbarring of unpaid representatives, the Minister can listen all he likes but will have no power to make that regulation. The amendment is designed to give him that power, whether or not he chooses to use it later.

Mindful of the Committee's desire to move on, I give the Minister notice that I will certainly want to return to the issue. I note the helpful comments of the hon. Member for North Norfolk. If the Liberal Democrats think the issue important, it might be worth exploring when the Bill goes to another place for further consideration. I beg to ask leave to withdraw the amendment

Amendment, by leave, withdrawn.

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Mr. Hammond: I beg to move amendment No. 14, in page 32, line 16, at end insert—

    '(1AA) Regulations made under subsection (1A) above may not discriminate between different classes or types of representatives or between representatives on the basis of whether they represent applicants or respondents.'.

The Chairman: With this we may take amendment No. 24, in clause 23, page 32, line 41, at end insert—

    '(2A) Regulations made under subsection (2) above may not discriminate between different classes or types of representatives or between representatives on the basis of whether they represent applicants or respondents.'.

Mr. Hammond: Amendment No. 14 takes a familiar form. It relates to clause 22, and amendment No. 24 would similarly amend clause 23, in the matter of employment appeal tribunals. It is a probing amendment. We want to understand exactly what the Government will have in mind in bringing in the regulations. The amendment would require that regulations made to be inserted into the 1996 Act under the new subsection (1A) should not discriminate between different classes or types of representative, or between representatives on the basis of whether they represent applicants or respondents.

We probably all agree that the starting point in legislation should be non-discrimination between classes or types of a given category of people. If the Government want to behave in a discriminatory manner as regards certain classes of individual, there is an imperative for them to make an intellectual case and, perhaps, a moral case, for it. What the Minister has told us of his intentions to discriminate between certain classes of representative is based on the representative's—and perhaps to some extent the applicant's—view of the world.

I am not convinced that the route favoured by the Minister will benefit applicants. It strikes me that it might sometimes lumber applicants with costs that would have been better directed at their representatives, where those representatives are unpaid. What is missing from the debate is recognition that the bad behaviour of a representative in relation to a tribunal imposes costs on third parties. In my understanding, under the regulations, the damage and loss suffered by those third parties as a result of the representative's conduct might be made good, or it might not, depending on the class or category into which the representative fell. That seems unfair to third parties.

Last week I was confused about the definition of unpaid representatives used by the Minister. The Minister initially suggested that lawyers working on contingency fees would not be considered as paid representatives, then corrected himself and said that they would. The House of Commons Library brief, usually referred to here as authoritative, states that the regulations

    ''will also be able to define 'representative' so as to exclude those who do not charge for their services. This would mean that costs could be awarded against solicitors, barristers, in-house lawyers and employment advisers acting in a commercial capacity''.

I am confused. If an in-house lawyer, an employee of a trade union or an employee or respondent, who happens to be a lawyer, is to be included in the

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definition of those who are paid—as is a lawyer working on a contingency fee who loses and does not earn anything—it is not clear to me how the Minister can distinguish between the group considered to be paid representatives and the group that is considered to be unpaid. I think that I know what the Minister has in mind. The terms ''paid'' or ''unpaid'' are a parliamentary draftsman's way of achieving what he wants, but the Minister clearly has in mind CAB and trade union representatives as the group that should not be subject to these penalties. It may also include representatives of employers' associations, although I suspect that we may inadvertently be creating loopholes by including unpaid representatives of respondents who are provided by employers' federations or trade associations.

Mr. Mark Prisk (Hertford and Stortford): I welcomed the Minister's comment about changing the position on contingencies, but to pursue the point a little further and in order to define ''paid'' and ''unpaid'' more clearly, will my hon. Friend comment on the following difficulty? Someone might join a trade organisation or union organisation in which the legal services are provided as part of a general membership fee. Someone else might join an organisation in which legal fees are defined separately. Would a case where an additional supplement was paid, such as a gold star membership, be included within the definition of paid representative?

Mr. Hammond: My hon. Friend asks a good question that is probably better directed to the Minister than to myself. I am sure that the Minister will respond in due course. It is not inconceivable that a trade union would choose in some cases to support its members by using outside support, which might be legally qualified support. It is rather an odd distinction that if a trade union uses an in-house person who happens to be a lawyer, that person is exempt from these penalties, but if it hires a less qualified person from an outside law firm, that person is vulnerable to them. [Interruption.]

The Chairman: Order. Could I prevail upon the hon. Gentleman so that we can hear the announcement on the alarm system in the Corridor? [Interruption.] We must apparently stand by for further announcements.

Mr. Hammond: I shall stand by, Mr. Benton.

I am seeking to explore how the Minister intends to draw the distinction between what I refer to as the group who will be vulnerable to the provisions of the subsection and that group who will not be vulnerable. It is important that we do not create what I believe is usually called second-order discrimination by identifying a group who will be treated differently from another group. There is effectively discrimination against a class of applicants or respondents because, de facto, they happen to be represented by the excluded group.

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Although the regulations will probably be neutrally worded and will talk about representatives being paid or unpaid, regardless of whom they represent, employers fear that if unpaid representatives who appear before tribunals represent applicants in 95 per cent. of cases and respondents in only 5 per cent. of cases, the regulations clearly would be discriminatory. Behaviour that treats part-time workers differently from full-time workers discriminates against women because of the composition of the work force and the much larger numbers of women in part-time employment. That principle has been well established in the courts.

I am anxious to hear what definitions the Minister will use, how he will deal with awkward cases, such as in-house lawyers and contingency fee arrangements, in order to ensure that the playing field really is level, given, for the moment, that he insists on maintaining a distinction between paid and unpaid. The amendment is intended to explore the practical working arrangements for making that distinction.

11.15 am

 
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