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Lord Haskel: Although we share my noble friend's sympathy for the amendment, I am afraid that the Government do not support the amendments, because they place unnecessary burdens on both tribunals and the users of tribunals. They also remove measures that the Government wish to introduce, which we believe will improve tribunal procedure. We attach a great deal of importance in the Bill to improving tribunal procedures.

Amendment No. 1 would force parties to seek advice before making a decision as to how the tribunal can determine their case. As my noble and learned friend Lord Archer said, the Government consider it important that parties to proceedings should seek the advice that they consider appropriate. I can assure my noble and learned friend that we encourage them to do so, for example, in the guidance and other literature which is provided to the parties. However, the Government would not wish to seek to require the parties to take advice, save in exceptional circumstances. A circumstance where it is necessary for there to be additional safeguards is where the parties enter a compromise agreement, because in doing so they forfeit their right to have their case determined by a tribunal. Such a right is not in question here.

Amendment No. 3 would prevent the tribunal from determining cases without hearing evidence where it is bound by a decision of a superior court. I assure the Committee that the Government do not intend that power to be used where the decision of a superior court is being appealed to a higher court. Our intention is that the provision will be used only where the law is settled. It does not prevent a party from challenging the settled law by appealing through the judicial system. We do not consider it necessary to introduce an express power for the tribunals to stay proceedings. That, in practice, occurs already, where the tribunal considers the interests of the party and justice so require.

I turn to Amendment No. 4. I am not sure that the amendment addresses the problem which my noble and learned friend Lord Wedderburn stated so eloquently. Amendment No. 4 would undo the good work which has taken place in streamlining procedures to weed out those cases which a tribunal has no jurisdiction to hear. Our intention is to clarify that a full hearing is not necessary where a tribunal is able to decide a preliminary hearing that the applicant does not have a right to bring a case; for example, because he or she is not an employee to whom the right applies. We feel that the amendments would hamper our efforts to improve the tribunal system.

Lord Archer of Sandwell: I am most grateful to my noble friend for giving way. Does he agree that there is

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nothing in the clause at present which would preclude the fullest argument as to whether or not someone is an employee?

Lord Haskel: I think that my noble and learned friend is right on that. As I was saying, the three amendments would hamper our efforts to improve the tribunal system, which, as I said at the start, is the whole purpose of the Bill. I hope that the Committee will reject the amendments.

Lord Campbell of Alloway: I am sorry to intervene. Incidentally, neither his noble friend nor I is learned in this place. We are just ordinary Lords. I take the point that the Government are trying to improve the procedure. Following that point, I went against Amendments No. 1 and 3, but let us look again at Amendment No. 4 with an open mind. There is nothing there that is detrimental to the procedure. There is no logical objection to Amendment No. 4. Words are being used, but I cannot understand the substance of the objection to Amendment No. 4. It can only do good. It is fair; it is reasonable; it is just; and it conforms with the rudimentary requirements of the European convention. What is wrong with it? Why do the Government object to it? They cannot just stick to a brief and go on saying the same thing. What is the logical objection?

Lord Haskel: The objection is as I said before. Amendment No. 4 would undo the good work which has taken place in streamlining procedures to weed out those cases which a tribunal has no jurisdiction to hear. The purpose of the Bill is to speed up the tribunals' work.

5 p.m.

Lord Mishcon: Before my noble friend sits down, perhaps I may deal with a point appositely raised by the noble Lord, Lord Campbell of Alloway; that is, who in this House is entitled to be called learned. In the other place--Members will forgive me if I use the word "merely"--one must be merely a Queen's Counsel in order to be called learned. The obvious lesson is that who is learned in the House of Commons is not deemed to be learned in the House of Lords.

Lord Archer of Sandwell: I am grateful to my noble friend for giving way. I believe that the reference was to me. I understand that former Law Officers are learned in this House, at least in the technical sense.

Lord Mishcon: My noble and learned friend is right. I was trying to say that someone who is learned in the House of Commons because he is a Silk is not deemed to be learned in this House. That means we have a different level of what is learned.

Lord Lester of Herne Hill: Before the noble Lord continues, and while we are seeking to ensure that our usage is correct, does he agree that another undesirable practice has crept in; that is, to refer to a Minister as "the noble Minister"? I believe that that is incorrect--at

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least, at an early stage in the previous government I was rebuked for saying so. It seems to me that all Lords are noble but Ministers are no more noble than anyone else.

Lord Mishcon: If we continue to deal with anachronisms which exist between the two Houses, we shall stray from the main purpose of the debate.

Does the Minister agree that everything that was said in regard to Amendment No. 1 would be cured if only the Government would announce in the near future that their legal aid programme included appearances before tribunals? Not only would that be a gracious move, about which we spoke in Opposition some time ago, but it would also save more money than it would expend because the tasks of tribunals would be simpler and would occupy far less time.

Lord Haskel: I can respond to my noble friend only by saying that the issue of legal aid for appearances before tribunals is one on which I ought to take advice and return to him.

Baroness Turner of Camden: I thank the Minister and my noble and learned friend Lord Archer for responding to the amendments so fully. As regards Amendment No. 1, which deals with seeking advice, I am glad to learn from the Minister that it is intended to encourage people to seek advice. Perhaps as a trade union official I may say that one encouragement would be for everyone to belong to a union. If they were dismissed they would from day one have automatic access to independent and adequate advice. Unfortunately, not everyone belongs to a union. Therefore, I hope that everyone will be encouraged to take advice before attempting to reach consent or written agreement under the Bill. I hope that if people turn to advice bureaux--for example, the NACAB--they will ensure that people are given independent and adequate advice. It is not my intention today to divide the Committee on this amendment. I shall read with great care what has been said by the Minister and my noble and learned friend.

Amendment No. 3 deals with a legal point. I note what has been said and will take no further action today. However, as regards Amendment No. 4, I strongly believe that we are dealing with a different and important matter. The issue of whether or not a person is an employee is of considerable complexity. As my noble friend Lord Wedderburn indicated, there have been considerable changes in the labour market. There has been a growth of contract labour of one kind or another in respect of which it is not clear whether a person is self-employed or an employee. Furthermore, there has been a growth in "zero employment" when people take up work often because it is all they can find. Their position in relation to employment law is somewhat confused.

I note what has been said today. It is not my intention to divide the Committee, but I believe that Amendment No. 4 in particular is of importance. I hope that the Minister will look at it before the Report stage

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because several noble Lords, including the noble Lord, Lord Campbell, expressed great anxiety about the issues it raises. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn moved Amendment No. 2:


Page 2, line 24, after ("determination") insert ("or stay").

The noble Lord said: The division of labour in our labour market means that Amendment No. 2 falls to me. I shall move it briefly, almost formally, for a particular reason. It suggests merely that the tribunal in regard to its form in Clause 2 has the power not only to determine the matters before it but also to stay the proceedings. It may be that that meaning of the amendment led the groupings to include Amendments Nos. 6 and 7, both of which are concerned with the more important question of representative, group or test actions--whatever they are to be called--which have grown in importance in employment law. I know that my noble friend Lady Turner wishes to speak on that issue and that the noble Lord, Lord Lester of Herne Hill, has tabled an amendment in that connection. Amendment No. 2 is therefore a paving block for their amendments. I beg to move.


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