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Baroness Miller of Hendon moved Amendment No. 129:


Page 82, line 30, at end insert--
("( ) It shall be lawful for the court or certification officer to declare an application by the same person alleging any similar or related failure described in this section to be vexatious so long as in the individual matter the declaration does not infringe the European Convention on Human Rights."")

The noble Baroness said: My Lords, this amendment is to deal with the problem of a vexatious applicant, colloquially a serial complainer. It is someone who

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launches complaint proceedings on some grounds or other that are dismissed. He then launches another claim on the same or possibly similar grounds that might well have been raised in the first case. "If at first you don't succeed, try, try, try again." That is not a fanciful scenario. In another context I imagine that most employment panels can tell stories of their regular customers.

The High Court has power to debar a vexatious litigant. Now that employment tribunals, the CAC and certification officers are taking on so much more work of a quasi-judicial nature, it is essential that they should have the power to make things difficult for the persistent claimant who persistently fails to justify his claims.

This clause meets some part of the problem by making the remedy available to the certification officer so that he at least can quickly dispose of vexatious claims. There is one necessary qualification. Debarring an application for being vexatious is not to take place if, in the particular circumstances of the case, it would infringe the European Convention on Human Rights. The convention permits debarring steps in appropriate cases. If such procedure is appropriate to the ordinary civil courts, there is no reason why it should not be available to the certification officer. I beg to move.

Lord Simon of Highbury: My Lords, as the noble Baroness made clear, this amendment deals with vexatious litigants, serial complainers. It was, of course, discussed at length during Committee stage when the Government introduced an amendment to enable the certification officer to refuse to hear complaints by individuals who have been declared vexatious by the courts. The purpose was to ensure that, so far as possible, the certification officer is not distracted by unnecessary cases. This is now set out in paragraph 23 of Schedule 6.

The noble Baroness tabled a similar amendment at Committee stage, although she subsequently was kind enough not to move it. Then, as now, there was much common ground between us in terms of our objectives. We both want to see a safeguard inserted to provide some protection for the CO. The difference is that our provisions cover all the CO's complaints jurisdictions whereas this amendment deals with only one of those jurisdictions: complaints about access to a union's accounting records. This does not sit well with the existing law on the treatment of vexatious litigants.

The noble Baroness also seeks to give the CO a power to declare people to be vexatious litigants. We consider this to be a powerful sanction. The CO has a very specialised role which does not include powers to impose penalties on individual union members. It would be inappropriate, in our view, for the CO to be given a wider power to declare individuals vexatious litigants.

The amendment refers to the European Convention on Human Rights. Denying individuals access to the courts or the certification officer is a very serious matter. It clearly raises human rights issues, as the noble Baroness rightly said. We have deliberately framed our proposals to ensure they provide some basic safeguards to vexatious litigants. For example, the certification

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officer will be obliged to consider all applications made by these individuals. He cannot just ignore them. If he feels the vexatious litigant has a proper case, then he can hear it. Likewise, our proposals allow for the vexatious litigant to apply to the courts for his case to be heard, if the certification officer refuses to determine an application.

In view of this explanation, I hope the noble Baroness can withdraw her amendment and instead lend her support to the government provisions in this area, to which I shall speak on the following three amendments.

Baroness Miller of Hendon: My Lords, I am pleased to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Simon of Highbury moved Amendments Nos. 130 to 132:


Page 88, line 30, at end insert--
("(3A) A person may not apply under subsection (1) in relation to a claim if he is entitled to apply under section 80 in relation to the claim.")
Page 91, line 43, leave out ("VII") and insert ("VIIA")
Page 91, line 46, after ("apply") insert ("to a complaint under section 37E(1)(b) or")

The noble Lord said: My Lords, I wish to thank the noble Baroness for easing the passage to government Amendments Nos. 130, 131 and 132 together. They are technical amendments intended to remove inconsistencies in the Bill concerning Schedule 6 and the certification officer.

I begin with Amendments Nos. 130 and 131. As I have already noted, the Government introduced an amendment in Committee to enable the certification officer to refuse to hear complaints by individuals who had been declared vexatious by the courts. In drafting the schedule, only applications made under Section 41 of the Trade Union and Labour Relations (Consolidation) Act 1992 were exempt from the vexatious litigants provisions. After further reflection, another exemption from the provisions has been identified.

Under Section 37E(1)(b) of the 1992 Act, the certification officer, on receiving a complaint from a trade union member regarding the financial affairs of a union, must consider exercising the powers given to him under Sections 37A and 37B of the 1992 Act. These powers enable the certification officer to call upon a trade union to produce records relating to its financial affairs where the CO thinks there is good reason for the union to do so. Likewise, the CO has the authority to appoint inspectors to investigate the financial affairs of trade unions in certain circumstances.

The CO does not actually determine complaints under these sections. His role is regulatory rather than quasi-judicial. As a result of his own inquiries or the findings of the inspectors, he might, in appropriate circumstances, decide to prosecute for offences falling within his competence or refer the matter to other agencies, like the police. In this sense, he is not dealing with union members as litigants but as individuals who have provided him with information in his regulatory

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capacity. It would therefore be inappropriate to include such provisions which deal with the treatment of vexatious litigants.

There is another reason why this section should be excluded from the vexatious litigants part of the schedule. If the CO takes the decision not to exercise the powers given to him under Sections 37A and 37B, he must inform the union member of his decision. However, he is not required to give reasons for refusing to exercise the powers, though he may choose to do so.

Conversely, under the vexatious litigants provisions newly added to the Bill in paragraph 23 of the schedule, the CO will always be required to give reasons for refusing the application.

As the schedule is currently drafted, Section 37E(1)(b) of the 1992 Act falls within the vexatious litigants provisions. Consequently, if a union member were to take a complaint to the CO under Section 37E(1)(b) and if the CO decided not to exercise his power, there would be no requirement on the CO to give reasons for the refusal if the complainant has not been declared vexatious. Perversely, if the complainant has been declared a vexatious litigant, the CO would be required to give reasons for the refusal. This would obviously create an illogical situation for the certification officer and highlights the contradictory nature of the provisions already existing under Section 37E(1)(b) and those contained under paragraph 23 of Schedule 6.

Amendment No. 130 therefore removes complaints referred to the certification officer under Section 37E(1)(b) from the new vexatious litigant provisions.

I turn now to Amendment No. 131 which also relates to the vexatious litigant provisions. As I have already noted, paragraph 23 of Schedule 6 gives the CO the power not to entertain a complaint from a vexatious person. However, in drafting the provisions we inadvertently failed to extend that power to cover complaints heard under the new Part VIIA of the 1992 Act. Paragraph 19 of Schedule 6 adds a new Chapter VIIA of the 1992 Act to establish an entitlement for trade union members to complain to the CO about certain alleged breaches of the rules of their trade unions. It was always intended that breaches of union rules should fall under the vexatious litigant provisions, and Amendment No. 131 remedies this drafting error.

I turn to Amendment No. 132, which is the final Government amendment to Schedule 6. Schedule 6 establishes an entitlement for trade union members to complain to the certification officer about certain alleged breaches of the rules of their unions, including rules relating to the balloting of members on any issue other than industrial action. Under the current law, trade union members must generally apply to the court about such breaches. However, in drafting the schedule we overlooked the point that the certification officer already has jurisdiction to hear cases of breaches of rules in respect of political fund ballots. Section 80 of the Trade Union and Labour Relations

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(Consolidation) Act 1992 gives the certification officer power to hear complaints about breaches of a union's rules relating to a political fund ballot.

What is more, the procedural requirements under Section 80 of the 1992 Act are different from those which are to apply under the new provisions. It would therefore be undesirable if the same complaint could be heard under two separate jurisdictions and under two different procedures. This minor amendment, therefore, ensures that complaints about breaches of a union's political fund ballot rules can be made to the certification officer only under Section 80 of the 1992 Act and not under the new provisions outlined in Schedule 6. The Section 80 procedures have worked well in practice and have not placed excessive administrative burdens on the certification officer. I urge the House to accept the amendments. I beg to move.

On Question, amendments agreed to.

8.30 p.m.

Lord Simon of Highbury moved Amendment No. 133:


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