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House of Lords

Friday, 25th July 1997.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Liverpool.

Earl Cowley--Took the Oath.

Employment Rights (Dispute Resolution) Bill [H.L.]

11.6 a.m.

Lord Archer of Sandwell: My Lords, I beg to move that this Bill be now read a second time.

I hope I may be permitted to say a few words on a matter not directly related to the Bill. I understand that today was the last occasion when we were led in our prayers by the right reverend Prelate the Bishop of Liverpool. I believe that your Lordships would wish to place on record our deep appreciation of his contributions to our proceedings over many years. His wisdom, his experience and, perhaps above all, his compassion for those who are underprivileged or vulnerable have offered us guidance which has been appreciated in every part of the House. I am old enough to remember his impressive feats in a different capacity. It is not given to everyone to achieve the highest distinction in two careers, and to that he has added a capacity for friendship which many of us have been privileged to share. I am sure he will take with him the affectionate recollection of every Member of your Lordships' House.

This Bill is intended primarily to address a problem which is almost universally recognised. Attempts to diagnose the reasons for the problem and to suggest remedies have not always attracted quite the same degree of unanimity. However, the process of consultation and discussion since at least the end of 1994 has brought about something akin to a consensus. Even on matters of detail I believe that the differences between us are narrowing.

Industrial tribunals were established by the Industrial Training Act of 1964. Since then their jurisdiction has been increased year by year and statute by statute. Originally at least, they represented the confluence of two processes. First, there was some feeling among those representing employees that the judiciary prior to the 1960s had sometimes failed to understand, still less to share, their perceptions of what was just and they looked for a way of resolving employment disputes which depended less on the courts. Secondly, there was at one time a mistrust of tribunals, exemplified in the book by Lord Hewart, then Lord Chief Justice, called The New Despotism and published in 1929. It was still influential in some circles when I was a student, although I hasten to add that that was nearly 50 years ago.

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That mistrust was evaporating by the 1960s. It has been accepted, at least since the Franks Report in 1957, that tribunals are a constituent part of the rule of law, and that they offer a number of advantages for a range of issues. They are less formal and rather more expeditious than the courts exercising more traditional jurisdictions; their members can offer an expertise and an experience in a specific field which it is difficult for the traditional courts to match; and the pattern of a legally qualified chairman and two members with experience and knowledge of the background against which disputes arise generates much confidence in those who appear before them.

The Donovan Report in 1968 recommended a substantial expansion in the jurisdiction of industrial tribunals to include all the disputes which were distributed then among a variety of jurisdictions, to provide,

    "an easily accessible, speedy, informal and inexpensive procedure",

for the settlement of disputes. Indeed, my noble friend Lord Wedderburn had already made a similar plea in his book The Worker and the Law. He may be cheered to learn that I have a well thumbed copy on my shelves.

Since then the nature and the quantity of cases coming before industrial tribunals have expanded until, in 1996-97, the number of applications was 88,910 and the forecast for the year 2000 is over 109,000. Their standards are high. The service which they provide is one of which they can be proud. Perhaps this may be the moment to declare at least a potential interest. I am privileged to chair the Council on Tribunals. Among the 70 tribunal systems which are within our supervision are the industrial tribunals. In a succession of annual reports we have commented on issues that have arisen in relation to them as to other tribunals. But I see and I hear of them in practice. The public receives a most commendable service in return for the resources invested. I wish to pay tribute to the leadership and hard work of the president, Judge Timothy Lawrence, which I see at first hand, and to all those who form part of the system, whether judicial or administrative.

Nevertheless, the expansion of their workload has led to delays in the hearing of cases. Those responsible for the administration of industrial tribunals have made serious efforts to respond. In 1991 an internal efficiency scrutiny made recommendations to address the problem relating to listing practice, the numbers of sitting days for full-time chairmen, and training for administrators. In its annual report for 1995 the Council on Tribunals referred to a number of initiatives by the president, Judge Lawrence, such as standard procedures where there are late entries of appearance, or where applicants cannot be traced. The proportion of cases reaching a hearing within 26 weeks has risen from 56 per cent. in 1993-94 to over 78 per cent. in 1996-97.

But the problem persists, and is particularly worrying since one of the advantages usually associated with tribunals is their expedition. A further concern is that, owing to the increasing complexity of some of the legislation which industrial tribunals have to administer, their claim to informality, which is sometimes equated with an absence of legalism, is under some pressure.

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In December 1994, the Department of Employment, as it then was, published a Green Paper entitled Resolving Employment Rights Disputes--Options for Reform. It evoked some 200 responses. Virtually all of them agreed on the need to address the problems; most of them agreed in substance with the proposed direction of the Green Paper, although some discerned dangers in a number of the proposals and were concerned to suggest safeguards--including the Council on Tribunals.

In November 1995 the then Government brought together those proposals from the Green Paper which had secured substantial support, and published a draft Bill. It reflected many of the comments and qualifications that had been received. In July 1996 the draft Bill was circulated for further consultation. In response to that exercise, the department--now the Department of Trade and Industry--received 95 responses, mostly supportive, but some making further suggestions for safeguards.

The matter proceeded no further because the election intervened and the former government were no longer in a position to proceed. But the proposals were not by then greatly controversial, and the incoming Government considered the situation, made some amendments to the draft to reflect the comments that had been received in the course of the further consultations, and prepared a new Bill.

At this stage I should explain my symbiotic relationship with the Government in relation to the Bill. The Government would be pleased to see it on the statute book. So would I, and many others. But the Government, as your Lordships are already discovering, are faced with a heavy legislative programme. When I learnt that the Government did not intend to include the Bill in their programme for this Session but were prepared to make the text available to me, I ventured to introduce it, so that this House would not be denied an opportunity of considering it and, if it finds favour, of passing it for transmission to another place.

Time was not available to me for further consultations, nor for such redrafting as I might have been tempted to undertake. But I may say at once that I am not necessarily wedded to every jot and tittle in the Bill. I look forward today to hearing the contributions of those noble Lords who propose to participate, and naturally I shall then consider carefully what is said. Some noble Lords were kind enough to advise me in advance of suggestions that they may make during the course of our debates. There are a number of noble Lords whose expertise in this field probably always exceeded mine, and is now certainly more up-to-date than mine. I shall welcome any advice that they may tender.

But I hope I may be forgiven if, in order to keep expectations within realistic bounds, I make three provisos. First, there may be procedural limitations on the amendments or additions to the Bill. Secondly, the Bill has emerged from a long process of consultation and I feel inhibited in introducing major revisions without consulting those whose interests are most likely

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to be affected. Thirdly, the Bill's prospects of completing its pilgrimage successfully are substantially improved by the fact that it enjoys the good will of the Government. If I were to do anything which might endanger that good will, the prospects of survival for the whole Bill would be substantially reduced. On a number of matters which many of us would like to see enacted, the Government have already embarked on quite separate consultative processes, and if my noble friend Lord Haskel were to indicate that some proposals should be the subject of separate legislation, I would respect that. Subject to those comments, my mind is open and welcoming.

I turn now to the proposals in the Bill. Essentially they fall into two categories. Part I is designed to improve procedures in order to make better use of the tribunals' time and resources so as to assist them in coping with the workload. Parts II and III are intended to provide alternative means of resolving certain disputes, both in order to reduce the workload confronting tribunals and because in some cases they may prove to be a more satisfactory method of resolving the issues.

If I were to embark on an exposition of all the provisions in the Bill, I doubt whether I should earn your Lordships' gratitude. I hope I may be permitted simply to indicate the more important of them.

Clause 2 empowers the Secretary of State to make regulations permitting tribunals in certain circumstances to determine proceedings without a full hearing. The first such circumstance is where the parties have given their consent in writing. One matter which has exercised my mind is whether it will be possible to ensure that the consent will operate only if each party had first received adequate advice.

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