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The Deputy Speaker (Lord Brougham and Vaux): My Lords, may I interrupt the noble Lord? If Amendment No. 5 is agreed to, I cannot call Amendments Nos. 6 and 7.

Lord Lester of Herne Hill: My Lords, I follow that point. That is exactly why I am speaking to this group of amendments at this stage.

I am grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very full explanation of the position. Essentially, there has been significant progress in clarifying the scope of the powers that are capable of being delegated to legal officers. The House has a choice of three different legal methods of arriving at the same conclusion. The first method, which I tried at an earlier stage and which is set out in the amendment which stands in the name of the noble Lord, Lord Renton, was to capture the problem by referring to it as interlocutory in nature. As the noble and learned Lord, Lord Archer of Sandwell, indicated, the defect in that approach is that it fails to capture some functions which are not interlocutory.

The second approach, which I endeavoured to follow, was to list on the face of the Bill, as the noble and learned Lord indicated, everything that is indicated in the Notes on Clauses or in speeches made on behalf of the Government as to any conceivable power that might be delegated to legal officers. The problem in relation to that was well canvassed in the letter from Mr. Paul Goulding, the deputy chairman of the Employment

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Lawyers Association, to whom perhaps I may pay tribute as being an outstanding lawyer, even though a member of my chambers, and someone who is committed, as I am sure he would like me to point out, to New Labour and this Government in particular. He speaks as a very experienced employment lawyer, as do his colleagues.

In the letter, the association rightly points out that it is a question of balance. The letter explains why, on balance, the association prefers the noble and learned Lord's amendment to my own. Perhaps I may also mention one or two other matters to which the letter refers since they are important. Although the association agrees in broad terms with that approach, the letter states:


    "Legal Officers should be able, in appropriate cases, to deal with interlocutory matters and disposals following withdrawal or settlement. We say in appropriate cases since there may be interlocutory disputes and also disposals following withdrawal or settlement which are sufficiently complex to justify a Chairman sitting to determine the issues. For example, where a settlement provides for payment by instalments and dismissal of the complaint only upon payment of all instalments, with a stay in the meantime, it may not be appropriate for a Legal Officer to make such an order. We hope that the Regulations which will follow the pilot study will provide a mechanism for the allocation of straightforward issues (whether interlocutory or final of the kind discussed above) to Legal Officers, while the more complex matters may still be dealt with by a Chairman [rather than a legal officer]".

The letter also emphasises the association's hope that,


    "the Secretary of State will consult fully with practitioners on the pilot study, its results, and the subsequent draft regulations".

I very much hope that the Minister will be able to give some indication that those views will be taken seriously and heeded when it comes to any draft regulations.

Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. That, of course, was precisely why I included both those points in my remarks.

Lord Lester of Herne Hill: My Lords, I believe that I made it clear, but I shall now make it quite clear, that I have been persuaded both by what has been said by the noble and learned Lord, Lord Archer of Sandwell, and the proposals put forward by the Employment Lawyers Association that my two approaches--interlocutory or listing on the face of the Bill--do not adequately capture what is needed. There needs to be flexibility. I very much hope that the Minister will be able to confirm that he and his department do not consider it probable that they will wish to go beyond the list that I have made and the additional point made by interrogatories at this stage. The Government have made that pretty clear in the Notes on Clauses, but it is important in this debate to be clear as to what the Government intend by these powers. As I understand it, they intend no more than I have listed, with one or two marginal additions. Having said that, I support the amendment of the noble and learned Lord, Lord Archer of Sandwell.

Lord Renton: My Lords, I propose to confine myself to the amendments to Clause 5. When I tabled my

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amendment, Amendment No. 7, the noble and learned Lord's amendments had not been put forward. I do not propose to press my amendment this evening.

However, what worried me was the opportunity for the chairmen of the tribunal to make regulations dealing with a vast range of matters. I did not think that that was right. The amendment which I tabled was the same in effect as that tabled by the noble Lord, Lord Lester of Herne Hill, at the Committee stage. I supported him then and thought that he was right. I was not so convinced by his rather elaborate amendment, Amendment No. 6, which seems to include matters which are interlocutory, or could be.

Having heard what the noble and learned Lord, Lord Archer, said and having considered carefully his amendments, although he has abandoned what I hoped might be the solution to the problem--namely the avoidance of much detail--in the circumstances we must accept it. I only add that legislation is always better, more effective and better understood by the people who have to obey it and implement it if it is not too detailed, and if it states principles rather than detail from which principles have to be inferred.

That is the reality of the situation tonight. If my amendment should be pressed, I would oppose the amendments of the noble Lord, Lord Lester. I have great regard for him and have co-operated with him on various occasions but I would oppose his amendments if he pressed them. However, I gather from what he said that he will not do so.

8.45 p.m.

Lord Haskel: My Lords, the Government fully support the initiative of my noble and learned friend Lord Archer in proposing Amendments Nos. 5 and 8, which we hope will meet your Lordships' concerns regarding the provisions relating to legal officers.

In light of noble Lords' continuing reservations, the Government have endeavoured, with the help of my noble and learned friend Lord Archer, to go some way towards resolving the problems as noble Lords see them by restricting the power taken in the Bill. As my noble and learned friend indicated, the Government are opposed to limiting the power by listing those functions, as in Amendment No. 6 tabled by the noble Lord, Lord Lester, which we consider might be appropriate on the face of the Bill. That would be against the scheme of the existing legislation.

As my noble and learned friend Lord Archer said, for obvious reasons of restriction the Government consider it to be inadvisable to refer to the provisions of secondary legislation in the primary legislation, either directly or by implication, when that secondary legislation may from time to time be altered.

We are loath to make changes to the Bill which might lead to unforeseen difficulties in the future which could only be put right by primary legislation. But I can assure the noble Lord, Lord Lester, that the points that he made will be carefully considered. That is why I am afraid that the Government cannot accept Amendment No. 6 tabled by the noble Lord, Lord Lester.

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We must also oppose Amendment No. 7 tabled by the noble Lord, Lord Renton. As has already come out in the discussion, his amendment is similar to that which he supported at the Report stage, introduced by the noble Lord, Lord Lester, in that it proposes that legal officers are limited to purely interlocutory functions. As I indicated at Report stage, the Government consider "interlocutory" to be too narrow for our purposes. In particular, we are concerned that it would prevent legal officers from making determinations where the applicant has withdrawn his case or where the parties have reached a settlement. We consider such determinations to be eminently suitable to be taken by a legal officer, but they could not be defined as interlocutory.

I therefore urge noble Lords to join me in supporting Amendments Nos. 5 and 8 tabled by my noble and learned friend Lord Archer, which would limit the functions of legal officers by preventing them from determining proceedings before a tribunal, other than in the two suitable circumstances which I have just outlined. The amendments thus specify what legal officers may not do on the face of the primary legislation, leaving the detail of those tasks which they can perform to the regulations.

I also hope that noble Lords will join the Government in supporting the initiative of my noble and learned friend Lord Archer in moving minor technical amendments to Clause 3 which are consequential upon his amendments to Clause 5. The need for these amendments only became apparent when we came to look at possible ways of meeting your Lordships' concerns relating to legal officers. They will usefully clarify the existing provisions regarding the duties which chairmen perform on behalf of the tribunal rather than as the tribunal. They will guarantee a clear distinction between those tasks which a legal officer might perform and those which chairmen carry out for the tribunal.

Perhaps I may once again assure noble Lords that all regulations giving powers to legal officers will be drafted in full consultation with the tribunal presidents. The Government regard the role of the presidents in this and in the pilot project as particularly important. Changes to the procedure regulations relating to legal officers will also be subject to consultation with the Council on Tribunals and to parliamentary scrutiny.


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