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Lord Archer of Sandwell: My Lords, I am grateful to my noble friend Lord Wedderburn for confirming at the outset of the debate that this is an important Bill. At least he and I begin in full agreement. My noble friend's amendment reflects concerns which were expressed by a number of noble Lords in Committee. I am grateful to my noble friends for their courtesy in discussing the amendment with me between Committee stage and today.

Perhaps I may spend a moment on the historical background of the problem. When industrial tribunals were first established, it was envisaged that they would have a number of advantages over the more traditional courts. They would be informal, quick, cheap and with proceedings capable of being conducted by litigants in person. Their determinations would quickly be brought to finality. Compared with more traditional courts, that

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is probably still the case to a substantial extent. But much of their jurisdiction now consists of areas of law where, as my noble friend Lord McCarthy said, the provisions are complicated and technical. That may not be anyone's fault. The world is becoming more complicated. It is not the fault of the tribunals. But it explains why there have been those--I emphasise to my noble friends--largely within the trade union movement who, in relation to certain sectors of their jurisdiction and in particular to claims for wrongful dismissal, have said, "Couldn't we find a method of resolving suitable disputes where the parties agree which seeks to recover those advantages of simplicity, speed and finality?"

Clause 7 of the Bill is an attempt to offer that option, with appropriate safeguards. As my noble friends said, those who wish to retain the full range of options for appeal may simply forget about arbitration and refer their disputes to the tribunal. That was the burden of much of what my noble friend Lord Haskel said. But there are two propositions on which we would all agree. First, for those who are attracted by the idea of speed and finality, it would be pointless to offer the option of going to arbitration and then to deprive that option of speed and finality.

Secondly, I believe we would all agree that there have to be some channels for redress. Those who refer their dispute to arbitration are entitled to complain if the arbitrator departs totally from his terms of reference or embarks on a procedure which is totally eccentric or unfair--the perverse decisions referred to by my noble friend Lord Wedderburn.

In her very fair survey of the options, if she will allow me to say so, my noble friend Lady Turner said that none of us wants to say that there shall be no appeal. I agree with my noble friends Lord Wedderburn and Lord McCarthy that a very good beginning is to make sure that we have good arbitrators. If we can get the decisions right at first instance, it removes many of the problems. But it cannot remove all the problems. There will be occasions where there needs to be redress. I believe that we are now largely agreed that there are two areas where some redress should be provided.

Perhaps we may turn first to issues of European law. As I understand it--my noble friend confirmed the position--the Government's approach is to seek to retain finality as in other issues of law so far as that can be done consistently with our obligations under Community law. At earlier stages in our debates we have tended to speak as though there is an absolute obligation on member states to provide a channel for reference to the European Court in any arbitration procedures. It is by no means certain that that obligation is so wide. European law recognises a right to agree to arbitration, as I understand it, and to restrict the range of appeals. There are at present before the European Court of Justice two cases--my noble friend referred to them--where the extent of the obligation, if any, is being considered. At Committee stage I was asked whether I could indicate those cases. They are Eco Swiss China Time Limited v. Bennetton International, and the Compagnie Maritime Belge case. I can give noble Lords the references if they wish to consult me afterwards.

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As my noble friend Lord Haskel made clear in Committee, the United Kingdom Government have submitted observations in those cases. They would like to await the outcome before deciding definitely on the provisions relating to disputes about European law. But it is only honest of me to say that I understand that the Government would be minded to retain finality so far as that is consistent with our obligations as defined by the Court. The importance of finality in arbitration proceedings has been emphasised to the Government by representatives of employers and employees, and, as my noble friend Lord McCarthy said, very emphatically by ACAS. We know that there are two sides to the argument; but there are advantages in finality.

I turn to issues other than those of European law. There is a wide consensus that we should not admit appeals on every issue of law which arises. But we all agree that serious procedural matters should have a form of redress and that it should go rather wider. The question is how best to achieve it. My noble friends suggest judicial review. I know from many conversations I have had in the past with my noble friend Lord Wedderburn that judicial review is not his first choice. For myself, I should prefer not to leave redress to judicial review. If I have misrepresented my noble friend, I apologise.

7.30 p.m.

Lord Wedderburn of Charlton: My Lords, my noble and learned friend will remember that the noble Baroness and myself moved amendments in Committee which did not rely on the normal judicial review, but on a special structure for the EAT. I am sure that he could not forget that.

Lord Archer of Sandwell: Indeed, my Lords, quite the reverse. I am grateful to my noble friend for confirming precisely what I said: it was not his first choice. It would not be my first choice either. It is a very useful remedy which the courts have developed over the past few years, but it tends to be a remedy for situations where no other redress has been provided. It follows that it tends to be attended with uncertainty and unpredictability. It is better, when we foresee the need for redress, to provide it specifically. Then it can be tailor-made to the needs of the parties. In any event, for what it is worth, I endorse the remarks of my noble friend Lord Haskel, that it is by no means certain how judicial review can be made to apply to what will be in effect a private agreement between the parties to the arbitration.

However that may be, the Government's view, as I understand it, is that it will be difficult to formulate appeal provisions until we have the scheme. For that reason, they are reluctant to incorporate specific appeal provisions in the Bill. As my noble friend said, my noble friend Lady Turner had foreseen the difficulty, and what they have in mind is using Section 68 of the Arbitration Act 1996.

I appreciate my noble friend's view that that Act is designed primarily to apply to commercial arbitrations, and not all of its provisions are suitable for industrial

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disputes. Of course they are not; we are all in agreement about that. But it does not follow that the entire Act is totally unhelpful and unusable.

Section 68 states:


    "A party to arbitral proceedings may ... apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award".

That provision is fairly wide.

Subsection (2)--which I certainly do not intend to impose on your Lordships at this hour of the evening--sets out a list, (a) to (i), of possible examples of material irregularity. My noble friend Lady Turner says that that is too restrictive. All my noble friends are rather indicating that.

Lord Wedderburn of Charlton: My Lords, will my noble and learned friend read the final paragraph of subsection (3)?

Lord Archer of Sandwell: My Lords, if my noble friend wishes me to read it out, then of course I will. I think that there are those who are rather anxious about the time. Subsection (3) states:


    "On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction",

and then states what the court may order. It may,


    "confirm the award ... vary the award, or ... set aside the award".

Lord Wedderburn of Charlton: Over the page--

Lord Archer of Sandwell: My Lords, it is all on the same page. I am trying to be helpful.

Lord Wedderburn of Charlton: I am sorry to--

Baroness Blatch: My Lords, while there is a private altercation going on between the two noble Lords, I wonder whether I might intervene. We have been debating the Bill for over an hour and a half and are only on the second grouping. I do not in any way wish to detract from the importance of the Bill or of the amendments under discussion. However, I wonder whether I might appeal to those present from the usual channels, given that people have travelled a very long way specifically to be here for the other debate, which was expected to take place much earlier this evening. At the end of this amendment, which I suspect still has a good half an hour or more to run, is it possible that the House might adjourn long enough for the other debate to take place, and then this Bill could continue? I suspect that, taking the first three amendments as a guide, we shall be here for a very long time on the remainder.


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