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Lord Archer of Sandwell: I do not wish to appear to repeat ad nauseam our gripe, but the grouping has now led us into a situation where anyone reading these debates will find it almost impossible to decipher what we are talking about.
I shall deal first with the amendment tabled by my noble friend Lord Gladwin. The purpose of the clause is to allow an industrial tribunal to enforce an order involving re-employment. As he said, it is where the employer has not honoured the order that the question of enforcement then arises. There are two possibilities: first, to take it back to the arbitrator; or, secondly, to refer it to the tribunal. It seems more sensible to allow the matter to be dealt with by the tribunal as though it were an order of the tribunal.
ACAS has not yet of course prepared the scheme. It has prepared a memorandum but there are many details which yet require to be discussed. The scheme itself will set out all the remedies available under it. My understanding is that the Government intend the awards of re-employment by arbitrator to be similar, if not identical, with the remedies available in Part X, but they do not want to rule out the possibility of an order by an arbitrator which may consider it sensible to add something like:
What I think everyone wants to avoid is the situation where, if that were done, if it did not fall precisely into the formula under Part X, no one would have power to enforce it. That, I think, is why the Government are anxious to include in the clause the words which my noble friend wishes to delete.
I believe that we need to think further about this. I understand my noble friend's anxieties. However, I am certain that the Government's concern is not to permit something to be imposed on employees which they may not wish; it is for something to be included to enable an employee to feel that he has not had a raw deal. That is the purpose. It may be that were my noble friend not to pursue his amendment at this stage, we could have further discussions before Report.
As to the point made by the noble Lord, Lord Meston, we have to accept that it is not intended totally to duplicate in arbitration schemes the jurisdiction of the tribunal. They are, as I believe I said earlier, two different methods of resolving a dispute. They are not intended to be two alternative forms of tribunal jurisdiction. Of course it is not intended that they should administer two totally different systems in law. So I wholly take the point made by the noble Lord.
I believe that the parties will normally ensure that a dispute which they refer to an arbitrator is a dispute about unfair dismissal and not about discrimination. Most arbitrators would want to ensure that that is what they were embarking upon before they embarked upon it, but I can see that something could arise in the course of an arbitration which had not been foreseen. I think that we are all looking for some way of dealing with that.
I turn now to Amendment No. 23. We are in this difficulty, if the Committee will forgive me, that before I address Amendment No. 23 I should say a word about my Amendment No. 21 which is for debate at a later stage, although I do not believe that it is a highly controversial proposal. The Committee may remember that on Second Reading I said that the proposal in Clause 7 is confined, in the first instance, to claims for unfair dismissal, but the Bill would empower the Secretary of State to extend it to other occasions for dispute, such as discrimination. That could be done by means of the negative procedure. That is what is in the Bill.
I said on Second Reading that that seemed to be open to two objections; first, the objection of principle, voiced by the Council on Tribunals many times, that a new jurisdiction should be established, wherever possible, by primary legislation and that where, for some reason, that could not easily be done, it should be established by an order requiring affirmative resolution, because it should be subject to the maximum parliamentary control.
Secondly, the Committee may recollect that I said that I accepted that some noble Lords took the view that while the proposal might sensibly provide a further option for those claiming for unfair dismissal, it was not normally a suitable method for dealing with other forms of dispute. One solution, which I think my noble friend Lady Turner chose, was to debate the issue at this stage and to exclude ab initio part of the spectrum of the option.
I hope that my noble friend Lord Haskel will confirm that in the present circumstances the Government have no intention of extending the scheme to any further forms of dispute. The Committee will remember that he assured us on Second Reading that if ever there were such a proposal there would be the fullest consultation. The question therefore is whether we should decide the issue now or when it arises after the consultation and after we have had some experience of how the scheme works already in relation to unfair dismissal. I am convinced that we must ensure that there can be no extension of the scheme without such a debate taking place. I hope that my noble friend agrees that the
Returning to Amendment No. 23, not only does it seem better to debate the question of whether the provision should be extended if and when it arises, but I believe that my noble friend's amendment will have an effect opposite to what she intends. Members of the Committee will remember that the consultation paper proposed that parties should be able to exclude the jurisdiction of the tribunal by referring the dispute to any form of arbitration. The Bill provides that the jurisdiction of the tribunal will be excluded only by agreement to refer to an ACAS scheme and only if that agreement comes about in the course of an action by a conciliation officer or by way of a valid compromise agreement.
The problem is that the present legal position appears to be uncertain. I am bound to say that if I am pressed on the matter I cannot give the result of detailed research because I can quote only the advice that was given to me at a late stage in our consultations. However, it may well be that the present position is that it is uncertain whether any form of arbitration may exclude the jurisdiction of the tribunal. I understand that the question has not been decided. One important effect of Clause 8 is to preclude that possibility. If the disputes which my noble friend has in mind are removed from Clause 8 that possibility may be reopened. I am sure that that is not my noble friend's intention, nor an outcome which any Member of the Committee would seek to bring about.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, will he deal with the point that I raised? It was that in one area European Community law is paramount and we must preserve the right of access to the judicial process after arbitration, if there is to be arbitration. That must be guaranteed, or we are in clear violation of both directives. We must take that into account as a serious matter.
Lord Archer of Sandwell: I am sorry, I overlooked the point. It is the subject of a later amendment, but I shall be happy to deal with it now. We have had substantial discussions on the issue--indeed, I am told that some officials lost a night's sleep when considering it last night. Everyone agrees that the point must be dealt with, but we may need to consult on how it should be dealt with. I can give the noble Lord an assurance that it has not been and will not be overlooked.
Baroness Blatch: Heaven forfend that officials are losing nights' sleep over anything. Perhaps the Minister will forgive me for intervening at this point, but there has been such a great deal of disquiet on all sides of the Chamber about the ordering of the groupings that I find it baffling. I understood that in respect of any Bill groupings are agreed by those who table amendments. If
I am disturbed by the disquiet because it appears to be affecting the noble and learned Lord, Lord Archer, the noble Lords, Lord Lester and Lord Wedderburn, and the noble Baroness, Lady Turner. It sounds like a minor matter, but it would make more sense to the debate to have a grouping agreed by those who have tabled amendments.
Lord Haskel: In view of the confusion over the grouping, perhaps it would help the Committee if I deal with the amendments one at a time. I agree with my noble and learned friend Lord Archer the impact that Amendment No. 14 would have where a conciliation officer has already taken action. We, too, regard the amendment as undesirable. However, we regard it as important that, where an employee is considering entering a compromise agreement, he will need to receive independent advice. That is provided for in Clause 8.
Amendment No. 18 would seek to reverse the power of the Secretary of State to apply parts of the Arbitration Act. My noble friend explained why the Government have it in mind to apply some of the provisions of the Arbitration Act, notably in relation to enforcement and serious irregularities, subject to consultation with ACAS. This provision will allow proper safeguards to be included in the arbitration scheme.
As regards Amendment No. 19, my noble friend has explained why it might restrict the powers of the tribunal to enforce the award of an arbitrator. I can confirm that the Government intend that the remedies or award which an arbitrator may order should be identical or similar to those in Part X of the Employment Rights Act. However, in the event that the ACAS scheme provides awards or remedies which differ, albeit slightly, from those in Part X, we wish to ensure that it can be enforced.
Amendment No. 20 is unnecessary in the light of the Secretary of State's power to apply the Arbitration Act. I confirm that the Secretary of State has it in mind to apply the enforcement provisions of the Act, subject to consultation with ACAS. However, we will consider further what noble Lords have said about that.
As regards Amendments Nos. 23 and 24, I can confirm that at present the Government have no plans to introduce further arbitration schemes. As I said on Second Reading, if the Government wished to consider other arbitration schemes--for example, as regards discrimination provisions--they would first consult widely with interested parties--for example, the Equal Opportunities Commission, the Commission for Racial Equality and groups of the disabled. Furthermore, the amendment tabled by my noble and learned friend Lord Archer will make the power of the Secretary of State subject to the affirmative procedure.
I hope that I have given the Committee the assurances that it seeks. As regards the comments of the noble Lord, Lord Lester, we will consider them and seek further advice.
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