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Baroness Hayman moved Amendment No. 17:


Page 6, line 22, leave out ("55(7)") and insert ("55(3) or (7)").

The noble Baroness said: This amendment refines the amendment to Section 57 of the Justices of the Peace Act 1997 proposed in Clause 9 of the Bill, and further extends the opportunity to enter into partnership contracts.

Under the Justices of the Peace Act, local authorities are responsible for providing the accommodation, goods and services required by magistrates courts' committees. The original clause facilitates partnership contracts for magistrates' courts by allowing such contracts to be redefined as current expenditure for the purpose of providing grant support. They would be entered into by the paying authority.

Under Section 55(2) of the Act, a magistrates courts' committee is, however, able to procure any goods and services which are current expenditure items direct from suppliers rather than through the paying authority.

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Section 55(3) defines current items as items which, if they were procured by the paying authority, would not be capital expenditure. The amendment, by including Section 55(3) in the regulation-making power conferred by Clause 9, will enable expenditure under certain partnership contracts to be treated as "not capital" for the purpose of allowing magistrates courts' committees to procure direct. The effect of this will be to allow magistrates courts' committees to enter into specified contracts direct with suppliers.

The intention is to make regulations which will allow magistrates courts' committees to enter into partnership contracts for the provision of IT services. It is not intended that this be extended to contracts for the provision of serviced accommodation, which will remain the responsibility of the paying authority. I beg to move.

On Question, amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 agreed to.

Clause 11 [Short title, commencement and extent]:

Baroness Hayman moved Amendment No. 18:


Page 6, line 40, leave out ("8") and insert ("(Contracting out of functions in connection with certified contracts)").

The noble Baroness said: I spoke to this amendment when moving Amendment No. 16. I beg to move.

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 19:


Page 6, line 43, leave out ("8") and insert ("(Contracting out of functions in connection with certified contracts)").

The noble Baroness said: I spoke to this amendment when moving Amendment No. 16. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

In the Title:

Baroness Hayman moved Amendment No. 20:


Line 6, at end insert ("; and for connected purposes.").

The noble Baroness said: I spoke to this amendment with Amendment No. 16. I therefore move it formally. I beg to move.

On Question, amendment agreed to.

House resumed: Bill reported with amendments.

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

4.27 p.m.

Lord Archer of Sandwell: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Archer of Sandwell.)

On Question, Motion agreed to.

House in Committee accordingly.

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[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]

Clause 1 agreed to.

Clause 2 [Determinations without a hearing or full hearing]:

Baroness Turner of Camden moved Amendment No. 1:


Page 2, line 9, leave out ("given their written consent") and insert ("consented in an agreement in writing after receiving adequate independent advice within the meaning of section 9 of the Employment Rights (Dispute Resolution) Act 1998.").

The noble Baroness said: In moving the amendment I wish, with the leave of the Committee, to speak also to Amendments Nos. 3 and 4, with which Amendment No. 1 has been grouped, and to restate some of the points I made when the Bill was debated at Second Reading.

I commend my noble and learned friend for bringing forward the Bill. It is a genuine attempt to make things easier, and in particular faster, for employees who have suffered the trauma of job loss. The present situation is unsatisfactory. There are queues for cases to be heard and the workload of industrial tribunals--now to be known as employment tribunals--has increased. It can mean that a lengthy period will elapse before a dismissed employee succeeds in getting satisfaction.

Clause 2(3A) specifies that employment tribunal regulations may authorise the determination of proceedings without any hearing (and in private) where the parties have given their written consent. My amendment seeks to provide that instead of "given their written consent" should be the words,


    "consented in an agreement in writing after receiving independent advice within the meaning of section 9 of the Employment Rights (Dispute Resolution) Act 1998".

I believe that the point made in the amendment is clear, and I hope that it is acceptable. It is not simply enough that the dismissed employee--I am thinking particularly of the dismissed employee rather than of the employer because the employer is more likely to have advice readily available--should not give up what might be important rights, such as the right to a day in court and to a hearing, without understanding precisely what is involved. It has to be understood--I am sure that it is understood by the sponsors of the Bill--that the dismissed employee is often in a shaken state. In the past few years unemployment has begun to affect industries and undertakings where it was once thought that employment was secure. As we all know, that is no longer the case. A substantial amount of money could be involved in the case of a long-serving employee--at least, it would be a substantial amount in the eyes of the employee. It is therefore crucial that the right to a full hearing should not lightly be surrendered and that the employee should have advice before that right is given up.

I turn now to Amendment No. 3. The Bill continues with provisions on determinations without a full hearing. It allows for that to occur where an employment tribunal is, on undisputed facts, bound by the decision of a court in another case to dismiss the case of the person or persons by whom or against whom the

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proceedings are brought. My amendment seeks to remove that provision from the Bill. I believe that the issue of when the legal outcome of undisputed facts is binding is very difficult. Employment tribunal decisions are constantly being reversed by the EAT when it thinks that the legal outcome is obvious or where it is bound by some higher court. What happens if, after a decision under this clause, the European Court of Justice, for example, gives a different interpretation of the law? I should appreciate hearing something on that point from my noble and learned friend who is sponsoring the Bill.

Amendment No. 4 seeks to set out a preliminary issue which is important and basic. Under the terms of the Bill, a preliminary issue can be dealt with without a full hearing, but the question of whether a complainant is a "worker" within the meaning of the provisions is important. It would not be right to determine the issue of whether an individual is a "worker" (although it is a preliminary issue) without the full facts going before a tribunal.

I regard the right of a dismissed employee to a full hearing as of great importance. It should not lightly be surrendered. The number of cases likely to be suitable for determination without a full hearing will probably be small, but we want to ensure that such important rights are safeguarded. Nowadays there are many variants of the employer/employee relationship. The growth in contract working may give rise to complex issues. Is the person concerned an employer, self-employed or an employee? This matter can be complex and needs to be thoroughly examined. A determination without a full hearing may not be appropriate in such circumstances. I beg to move.

Lord Campbell of Alloway: I should like briefly to support Amendment No. 4, but to oppose Amendments Nos. 1 and 3. I support Amendment No. 4 for the reasons given in substance by the noble Baroness, Lady Turner of Camden. However, I am a little puzzled on Amendment No. 1. The drafting of the clause surely assumes that the consent may be subsequently withdrawn. If there is any problem about the circumstances of giving the consent, it is assumed that the consent may be withdrawn. Therefore, I cannot appreciate the reason for the complexity of the provisions of the proposed amendment.

Amendment No. 3 seeks to leave out lines 27 to 30. Surely the removal of those words could well inhibit due administration and would stop the tribunal from getting on with its work. Such tribunals will have many cases to deal with. At the moment I cannot see any real justification for the amendment.

Lord Lester of Herne Hill: I support the amendments and shall seek briefly to explain why. The Bill deals with employment rights. Some of those rights are basic civil and political rights, such as the right to equal treatment in employment without arbitrary discrimination on various grounds. There is no legal aid for what will become employment tribunals and under the provisions of this Bill the employee will be surrendering his or her right to a full judicial hearing. If

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that is done without cast-iron guarantees that the employee knows what he or she is doing and if a determination is made without a full hearing, there is a serious risk of a denial of due process of law or, to put it in European terms, of a breach of Article 6 of the European Convention on Human Rights which provides that in the determination of his or her civil rights and obligations everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. I do not oppose the purpose of the Bill, but what is happening here is that in lieu of that basic right (which is guaranteed by Article 6 of the convention and which is soon to be guaranteed by our domestic law when we incorporate the convention into UK law), there will be a system which will deprive the applicant of those basic rights.

It is therefore extremely important either that these amendments are accepted or that we have guarantees in lieu of them to ensure that there is no denial of due process in the determination of civil rights and obligations. I am encouraged by the fact that the noble Lord, Lord Campbell of Alloway, shares those same concerns about fairness and due process. Indeed, I am sure that they are shared by noble Lords on all sides of the Committee. It would be a strange irony if this Government, who are committed to protecting human rights under the rule of law, were to whittle away those rights in respect of some of the most vulnerable members of our society. I therefore support the amendments.


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