Joint Committee On Human Rights Appendices to the Minutes of Evidence


4. Letter from the Chairman to Rt Hon Patricia Hewitt MP, Secretary of State for Trade and Industry, on the Employment Bill

You will recall that I wrote to you on behalf of the Joint Committee on Human Rights with a number of questions in connection with the above Bill, and particularly clauses 31 (allowing a tribunal to increase or decrease an award of compensation where one of the parties fails to comply with statutory procedures) and 33 (restricting recourse to tribunals where the applicant has not complied with statutory procedures). In your reply, you drew attention to a 1998 study which was said to show that 62per cent of tribunal cases were begun before the parties had met to discuss it, and in 37per cent of cases no attempt had been made to resolve the case informally before the application to a tribunal. The aim of clause 31 was said to be to reduce 'unnecessary or premature litigation', and that of clause 33 was to prevent 'unnecessary recourse to tribunals to determine issues which are capable of being settled within the workplace without recourse to the expense and formalities of tribunal proceedings'.

After considering your response, the Committee reported to each House concerning its view of the human rights implications of the Bill, and particularly the effect of clauses 31 and 33 on the due process rights under Article 6(1) of the ECHR (Twelfth Report of Session 2001-02, Employment Bill, HL Paper 85, HC 645). The Committee (at para. 6 of that report) accepted that the provisions served legitimate public interest objectives. Although the Committee did not expressly say so, the figures were influential in their conclusion (para. 29) that the Secretary of State was entitled to take the view that the new version of cl. 33 would not be likely to give rise to a violation of Art. 6.1.

Three members of the House of Lords (Lord McCarthy, Baroness Turner of Camden and Lord Wedderburn of Charlton) have now drawn the Committee's attention to doubts about the weight to be attached to the 1998 study. When pressed on this matter during the Second Reading debate in the House of Lords, Lord McIntosh of Haringey apparently told the House that the Government was only seeking to encourage communication between employers and employees (HL Debs 26 Feb. 2002, col. 1404), a rather different aim from that advanced in your comments to the JCHR. He is also said to have suggested that the study had 'little significance in policy making terms.'

The compatibility of clause 33 with Article 6(1) of the ECHR depends on the provision pursuing a legitimate aim, and on any interference with access to a tribunal being proportionate to that aim. In the light of the comments of the three members of the House of Lords, the Committee is considering whether to re-open its consideration of the Bill. Before it decides whether or not to do so, it would be grateful for your response to the following questions—

(a)  whether the purpose which the Government expects to advance through clause 33 has changed since you last wrote to the Committee, and, if it has, what the purpose now is;

(b)  what significance, if any, the Government now attaches to the figures derived from the 1998 study by way of establishing the legitimacy of the aim and/or the proportionality of any interference with the right of access to a tribunal;

(c)  whether the Government wishes to draw to the Committee's attention any other evidence relating to the legitimacy of the aim or the proportionality of any interference with a Convention right; and

(d)  whether the Government has any comment to make on the effect of their answers to questions (a) to (c) on the related issue of the compatibility of clause 31 with Convention rights.

In view of the progress of the Bill through the Lords, the Committee would be grateful for as early a response as possible, preferably by a week today, Tuesday 23 April.

16 April 2002


 
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