Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Wedderburn of Charlton: My Lords, perhaps my noble and learned friend will allow me to intervene. Can he give us any reference either in my speeches or in the speeches of my noble friends which made a distinction between England and Scotland in the manner he now asserts? Our memory is that we made the proposals that we made in Committee as applying to both jurisdictions alike.

Lord Archer of Sandwell: My Lords, I shall try again. My noble friend is absolutely right. None of us mentioned Scotland because at that time the problem of a difference between the two jurisdictions had not occurred to any of us. Perhaps it should have occurred to me, but it did not. My noble friends Lord Wedderburn and Lady Turner raised the question of whether this jurisdiction should be exercised by the High Court or by the Employment Appeal Tribunal.

Lord McCarthy: My Lords, no!

Lord Archer of Sandwell: My Lords, my noble friend Lord McCarthy says "no". But that is precisely what my noble friends were discussing at one stage in our debates.

Lord McCarthy: My Lords, I wish the noble and learned Lord would cite such speeches. That is all we are asking of him. When did we say such things?

Lord Archer of Sandwell: My Lords, I do not believe that my noble friend Lord McCarthy did. There is no doubt that my noble friend Lady Turner, as she

13 Jan 1998 : Column 1023

indicates, raised that point and I thought that my noble friend Lord Wedderburn also did so. If he did not, I withdraw the gratitude I was expressing to him for raising the matter. I am sure that, given the opportunity, I could find the reference. It was in view of what they said that we said, "They are right"; and that is what gave rise to all of this.

My noble friend does not wish to accept the accolade for having raised the matter. I should not have raised it. Perhaps the whole thing was by a side wind. I am not accusing him of committing any offence. I am trying to give him praise which I felt was due to him.

Lord Wedderburn of Charlton: My Lords, I am grateful to the noble and learned Lord. Of course we raised the point by raising the issue of jurisdiction of the Employment Appeal Tribunal. From that the noble and learned Lord remembered Scotland. I have to say to him that I always knew that Section 108 of the Arbitration Act excluded Scotland from most of that Act. I shall explain why when I come to make my speech. I had not forgotten Scotland at all.

9 p.m.

Lord Archer of Sandwell: My Lords, we are making some progress. First, my noble friend Lord Wedderburn confirms that he raised the point and so, I know, did my noble friend Lady Turner. We have got that far. So I can repeat the gratitude which I was trying to express to my noble friend Lord Wedderburn. Perhaps we can restore some atmosphere of peace.

Of course, no one mentioned Scotland. My noble friend said that it was in his mind all the time. Perhaps it was. I have never concealed the fact that my noble friend's learning on this subject greatly exceeds mine. I was not aware of it. Certainly, if I had ever come across Section 108--I have no reason to think that it has ever crossed my path--I had totally forgotten it. So we know how far we have got. I have not accused my noble friend of saying anything improper. In fact, I now accept that his learning on the point greatly exceeds my own.

That takes the argument to the point where I was trying to say that the amendment was moved at a comparatively late stage. It was hoped that the consultation necessary to produce the amendment would have been available at Report stage. But the consultation had not been concluded and so it was not possible to introduce it at Report stage. I was hoping at Report stage at least to give detailed notice of what was intended, but your Lordships will recollect that because of the other business which the House had to consider we were under some pressure to curtail our debates. If it assists, I confess that my explanation was less than explicit. With that mitigation, I hope your Lordships will forgive me for that.

Before I turn to the amendment set down by my noble friends, perhaps I may don an appropriate white sheet. At Report stage (recorded at col. 716 of the Official Report) my noble friend Lord Wedderburn intervened in the course of a speech I was making to refer to subsection (3) of Section 68 of the Arbitration Act. I misunderstood the words to which he was referring.

13 Jan 1998 : Column 1024

The only explanation available to me is that I was being more than usually thick. I plead in mitigation that I was simultaneously trying to following my noble friend's intervention and to deal with a different intervention from the noble Baroness, Lady Blatch, about the length of time the debate was likely to take. So I should make it clear for the record that my noble friend's reference was accurate, and I tender an unqualified apology to him.

I am grateful to my noble friends for giving notice of their concern. As I ventured to indicate, the difference between my noble friends on the one hand and the Government and me on the other is not one of substance. It is simply a question of construction and drafting. We are agreed on what we wish to achieve in the Bill. We wish to confer a wide power on the arbitration schemes, to which Clause 7 relates, to provide for appeals and we want that power to be as nearly identical north and south of the Border as is possible to achieve. We may not be in agreement as to the use which would be made of that power when the arbitration schemes come to be made but there is no issue as to how wide the power should be and it is not in issue that it should be co-extensive in England and Scotland. The only issue is whether the Bill as amended in the way I propose achieves that purpose.

My noble friends do not think that it does, or at least they do not think it achieves it elegantly. I can only reply that until now it has not been suggested that the parliamentary draftsman has failed to achieve that result in relation to England and Wales. I am advised by the parliamentary draftsman and Scottish lawyers that, as amended in the way I propose, it will achieve that purpose in Scotland. It is true that the Bill would use different language in relation to the respective jurisdictions and I agree that where possible, if one wishes to make the same provision for two situations, it is better to use the same wording. But there are two factors which determine the form of statutory drafting. One is the result which it is desired to achieve. The other is the existing law which it is intended to amend. If that is different in the two cases, it may be necessary to use different language.

It is probably true that my noble friend's amendment may achieve substantially the same result, but those advising on draftsmanship take the view that in England, where there is an existing code relating to appeals in arbitrations, it is better to use that existing body of law than to reinvent the wheel and to seek to run another provision in parallel with it. My noble friend's amendment would in effect either ignore the existing code in the Arbitration Act or leave it to duplicate the new provision. We are not competing for the Nobel Prize for Literature. We are trying to provide a workable piece of legislation for practitioners and predictability for litigants. That is what my amendment seeks to achieve. I beg to move.

Baroness Turner of Camden moved, as an amendment to Amendment No. 9, Amendment No. 10:


Line 3, leave out ("conducted in accordance with the law of Scotland").

13 Jan 1998 : Column 1025

The noble Baroness said: My Lords, Amendments Nos. 10 and 11 seek to amend Amendments Nos. 3 and 9 in the name of my noble and learned friend Lord Archer of Sandwell. In Amendment No. 10 we are seeking to remove the words,


    "conducted in accordance with the law of Scotland",

and in Amendment No. 11 we are seeking to insert, after line 9,


("(i) in arbitrations conducted in accordance with the law of England, the High Court or the Employment Appeal Tribunal, and
(ii) in arbitrations conducted in accordance with the law of Scotland,").

I listened with great interest to what my noble and learned friend Lord Archer of Sandwell had to say in moving his amendment. He knows very well that we do not oppose arbitration. On the contrary, I have frequently commended him for bringing forward the Bill because I know it was intended to make things easier for dismissed employees. However, I and my noble friends believe it is important to get it right, and this, with great respect, we have been trying to do. That is what our amendments seek to do.

Incidentally, I should like to take this opportunity to thank the Minister for the patience with which he has dealt with our concerns on this issue and for the letters he has sent to us. That is very much appreciated. He has confirmed that it is the Government's intention to permit challenges on the grounds of material irregularity and that there is also a commitment to provide for any necessary appeal or referral on points of European Community law, subject to the ECJ's ruling in the arbitration cases referred to by the noble and learned Lord, Lord Archer, at Report stage. We are grateful for that assurance. Apparently, the Government believe that this can be done, as it has been explained, for England and Wales by using Part I of the Arbitration Act 1996, appropriately modified. However, as that Act does not apply north of the Border, as the noble and learned Lord, Lord Archer, has said, the Government have agreed that an amendment is required to provide powers which, if necessary, will enable jurisdiction for any appeal in Scotland to be referred to the relevant court.

However, in my opinion and in that of my noble friends, that does not really answer the problem as we see it. In fact, we believe that it could create further difficulties since very distinct differences would then exist between procedures on each side of the Border. Our amendment to the amendment seeks to maintain parallel situations in both Scotland and England and Wales. Perhaps I may explain why I believe that is necessary.

The noble and learned Lord's amendment allows for appeals in the Court of Session or in the Scottish Employment Appeal Tribunal. An appeal is an appeal is an appeal, as I understand it. Delegated authority cannot alter their nature as appeals. However, that is different from Section 68 of the Arbitration Act allowing for an application to the High Court in England, which would inevitably, I am advised, be more narrow in character than a full appeal.

13 Jan 1998 : Column 1026

The letter from the Minister, which I have already quoted, says that it is intended to allow challenges on the grounds of material irregularity. The Minister's letter caused me to look again at the Arbitration Act and particularly at Section 68. There is no reference there to material irregularity. In fact--and this is confirmed by the noble and learned Lord, Lord Archer--the whole section and the references are about serious irregularity, which I believe is probably something different. Not all material irregularities are serious.

But I suppose that serious irregularity is not a surprising term to be used in arbitration Acts since it was originally intended to deal with commercial contracts and not employment disputes. The Minister's letter refers to the power of modification. But would that power extend to material irregularities? Would it be possible to extend modification to modify Section 68 in order to deal with material irregularities?

It may then get about that there are fewer opportunities for appeal in England and Wales and that it is best to have one's case heard in Scotland. Would the appellants and their advisers manoeuvre in order to get cases heard in Scotland? If that should transpire to be the situation it would not be very good for the future viability of the scheme. As I have emphasised repeatedly, we want the scheme to be a viable one.

Surely, the sensible approach is to treat the scheme, as near as one can, exactly the same on both sides of the Border. That is exactly what our amendment seeks to do. There is then less likelihood of confusion and argument about precisely what is meant by Section 68 of the Arbitration Act. We want the scheme to be successful, but it has much more chance of being so if the procedures both north and south of the Border are not only genuinely parallel but seen to be so. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page