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Earl Russell: My Lords, I thank the noble and learned Lord for his courtesy in coming to the House to move the regulations in person and also for the luminous clarity with which he presented the case.
I enjoyed his remarks about what is called "plain English". In large measure, his attempts have been successful. But since he is not particularly restricted by the argument "but we have always done it this way", will he look again at the acrostic method of arrangement which is used for setting out the order of the different parts of the regulation? Occasionally, that makes it more difficult to follow than it should be.
I am grateful to him also for his observations on what is called "one month". While the previous occupant of the Woolsack operated under the motto "never on Sunday", I believe that this occupant of the Woolsack operates under the maxim "never in February", the shortest month which allows the least time for lodging an appeal.
I shall not detain the House long on the substance. The matter was debated exhaustively during the passage of the Bill. I say only that I sometimes wish the Government would use some other word for describing their general programme than "modernisation". I have listened to too many estate agents to hear that word without a double-take.
One point which was made by my honourable friend Mr. Webb on the regulations, to which the noble and learned Lord has responded in part, was about the time limit of one month. I am interested in the further question as to when the clock starts to run on that one month. Under regulation 9(2), it starts to run from the despatch of the notice of the decision. I am particularly glad to see in regulation 28 that that notification must include reasons for the decision. That takes some account of the debates in the House because without reasons, one cannot know whether one has ground for lodging an appeal.
I understand that there is almost infinite discretion on special reasons. It would be interesting to know a little more about the circumstances of those who may be regularly employed. It is possible that some trouble may be saved if, in regulation 9(2), the specification were not to be the despatch of the notification but its receipt. That will require a system of recorded delivery. But it would catch instantly those people who are suffering from severe mental illness, in a coma after a car crash or otherwise obviously unable to respond. Therefore, in the course of creating some extra cost, it may also create some extra saving by eliminating a good deal of what would then become unnecessary argument. I hope that that point commends itself to the Government.
The Lord Chancellor: My Lords, the noble Earl, Lord Russell, makes several important points admirably briefly. I will certainly consider everything that he said. I shall do the best I can to respond now, but I may write to him further.
When I came across the concept of a month, my first reaction was that a month is of variable duration. Therefore the concept of one month could be regarded as odd. Months vary in duration. The saying goes,
The noble Earl, Lord Russell, expressed hostility to the word "modernisation". I hope that this Government will be remembered as a great reforming and modernising government. However, I called my Bill the Access to Justice Bill and not the modernisation of justice Bill. Mention was also made of the desirability of reasoned decisions. It is a principle of sound justice and good administration that reasons be given.
The concept of special reasons found in the regulations has also been mentioned. I shall resist the blandishment to offer a definition of "special reasons" beyond saying that they are those which do not arise in the generality of cases, and the discretion is untrammelled. I note the point made by the noble Earl, Lord Russell, that the trigger date should not be the date of the dispatch, but the receipt of notification, and I will write to him on that point.
The noble Baroness said: My Lords, the two draft amendments before the House are both to Regulation 36 of the Social Security and Child Support (Decision Making and Appeals) Regulations 1999. Your Lordships may recall that when we debated these regulations on 23rd March, my noble friend Lady Hollis of Heigham said that we were looking again at Regulation 36. We wanted to make sure that it delivered our intention that all appeals which involved the all-work test would be heard by a doctor and a lawyer. This draft amendment corrects the omission.
The president of the Independent Tribunal Service, Judge Michael Harris, has asked the Government to make a further amendment to Regulation 36. The president has requested that the regulation be amended to give him discretion to appoint a second doctor as a member of the tribunal where the appeal is sufficiently complex; for example, because the appellant has multiple disabilities. The second draft amendment to Regulation 36 would allow the president that discretion.
Earl Russell: My Lords, I should like to give an unreserved welcome to these regulations. They are an amendment to an amendment--a necessary and a useful one. I thank my honourable friend Mr. Rendel for his part in bringing this about and I should like to pay tribute to those involved in bringing about the initial process of amendment: the noble Baroness, Lady Anelay of St. Johns, who proposed the compromise during the course of the proceedings on the Bill from which all this originates; the noble Baroness, Lady Hollis of Heigham, for responding so warmly and so sensibly to it; and this House for discharging its duty as a revising Chamber as it should.
The noble Lord said: My Lords, on 10th May the House debated the Second Reading of the Employment Relations Bill which will implement the bulk of the Government's proposals set out in last year's Fairness at Work White Paper. This straightforward order concerns a remaining element of that package, one which is fundamental to the Government's aim of achieving a proper balance between employers' flexibility and employees' security. The order reduces the qualifying period for complaints of unfair dismissal from two years to one, taking it back to the period specified before the previous administration doubled it in 1985.
A year is a reasonable length of time for an employer to decide if a recruit is suitable for the job. It is not reasonable for employees to be left in a state of uncertainty about the security of their employment when they have been in the job for as long as two years. That
The regulatory impact assessment which accompanied this order pointed out that 90 per cent of companies already have written procedures. This order should encourage those without such procedures to consider introducing them. Although having procedures is not always a guarantee of fair treatment, it is certainly good practice, and employers who end up losing cases before a tribunal are most likely to be those without procedures. The reduction in the qualifying period will not only encourage employers to think more carefully about dismissing people; it may lead to improvements in recruitment procedures, too. This was a noticeable effect when unfair dismissal protection was first introduced. It is not a heavy burden for businesses to use proper recruitment and probation procedures and it repays them in terms of achieving more suitable and better skilled recruits. If the employee subsequently falls short of the required standard, the employer will remain free to dismiss, provided the treatment is fair.
This order will also reduce the length of service employees will need before they can request written reasons for dismissal. This is an important complement to the unfair dismissal qualifying period. It is important that employees know the reason for their dismissal in order to decide whether or not to make a claim of unfair dismissal. Giving a written statement of these reasons on request is a simple matter of good practice. It is very useful to employees, providing them with basic information which can help to resolve disputes and prevent unfounded tribunal claims. This measure will continue the Government's programme of combining flexibility in the labour market with security and minimum standards for employees. I trust that your Lordships will agree that this is a reasonable step to take and will approve the order. I beg to move.
Moved, That the draft order laid before the House on 28th April be approved [17th Report from the Joint Committee].--(Lord McIntosh of Haringey.)
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