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The Chairman of Committees (Lord Tordoff): My Lords, noble Lords will remember that the report of the Offices Committee which proposed the creation of the new House Committee suggested that it would approve a business plan prepared by the management board. The House Committee will not be established until the start of the next Session of Parliament and therefore it is too early to say when the business plan will be published. However, the Clerk of the Parliaments is chairing a management board which will come into being in October. I would expect the board to treat the preparatory work with a high priority.
Lord Barnett: My Lords, I congratulate the noble Lord and his Committee on an excellent report, which I am glad to see was prepared without the use of a paid consultant. The business plan is a crucial part of that report. It states that it will be the responsibility of the Clerk of the Parliaments to be the chief executive. Does the Chairman of Committees agree that we are very fortunate in having an excellent Clerk of the Parliaments?
Lord Barnett: However, my Lords, a few days' management training a year is hardly an appropriate way in which to prepare a chief executive to deal with the crucial job of spending more than £50 million a yearmuch less than the other place, but nevertheless an important job. Will the Chairman of Committees ensure that the new committee, when it is set up, will
The Chairman of Committees: My Lords, I am grateful to the noble Lord for the nice things that he said about the report and the fact that we did not need an outside consultant. I agree with his remarks about the Clerk of the Parliaments, with whom I have the pleasure of working very closely on a day-to-day basis. As regards the large amounts of money, one has to bear in mind that a lot of that is dependent upon works expenditure and, dare I say it, upon Peers' expenses. So the controllable amount is much smaller than the noble Lord suggests.
He is correctthe Clerk of the Parliaments and his staff do have management training, but the new board will be assisted by a professional financial and management adviser, whose appointment for two years has recently been agreed. In that period of two years we shall have an opportunity to see whether the system is working and, if not, it will be up to the new House Committee to make other arrangements if it is not satisfied.
Lord Peston: My Lords, bearing in mind, as my noble friend Lord Barnett said, the excellence of the report, in connection with the business plan I recall that the lowly chairmen of lowly committees will be consulted. Has the Chairman of Committees considered devolving budgets to the individual committees? Good business practice suggests that that is undoubtedly the way to get efficient outcomes in the use of resources. Speaking as a chairman, it is absurd that one constantly has to go back to Clerks to get permission to spend money on quite small things. If we are to go forward, of which we all strongly approve, it is about time that we adopted some modern business methods.
The Chairman of Committees: My Lords, it is an attractive suggestion that we should make the noble Lord, Lord Peston, a profit centreor a centre of profit, perhaps. I hopethis comes out clearly in the reportthat the new House Committee will, in the build-up to the budget, have much closer co-operation with the various chairmen of Select Committees than has been the case in the past. Building up the budget in that way, from the grass roots upwards, will satisfy the needs of the noble Lord, but I do not think that he will get a full budget of his own to play with.
Lord Oakeshott of Seagrove Bay: My Lords, does the Chairman of Committees accept that many people outside the House would be amazed to learn that we have existed for more than 700 years and still have not got a fully qualified, full-time finance officer responsible for a very substantial budget and about 400 staff? The Select Committee report looks forward to further progress in this area. Is there any chance that that might be within the next 700 days or even the next 700 months?
These matters are best left with the House Committee. It has a clear remit to come back to the House within a couple of years to report on how things are working. If it is not satisfied, other arrangements can be made. But, with the amounts of money that we have got and the capability that we have in management, I am fairly confident that we will succeed.
Lord Razzall: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. For those noble Lords who support the Bill and who are as inexperienced in the procedures of your Lordships' House as I am, this is good news rather than bad news. It means that the Bill will become law quicker than would otherwise be the case. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
The noble Lord said: My Lords, after the long wait from the first day of the Report stage after the recess, we now resume the long march through the Report stage of the Bill. In moving Amendment No. 91, I shall speak also to Amendment No. 92.
The amendments are concerned with Clause 34 and, in particular, with subsection (2), which introduces the new Section 98A of the Employment Rights Act 1996. The clause is much relied upon by the Government because it makes into an unfair dismissal any dismissal that does not satisfy the basic disciplinary procedures of Schedule 2, and, for all the criticisms of Schedule 2 on the second day of the Report stagewhich noble Lords who were present will rememberthat we welcome.
However, the clauseand particularly the subsectionhas a rather murky and curious history. The form in which it now stands is not the form in which it began. In the first version of the Bill, printed in November 2001, the authors of the Bill in the Department of Trade and Industry protected an employer from a claim of unfair dismissal only where the employer had utilised the standard procedures of Part 1 of Schedule 2. They did not insertor apparently forgot to insertthe new, modified procedures.
There was a case for that. Noble Lords will remember from our debates on Schedule 2 how unsatisfactory and uncertain are the modified procedures introduced into the Bill following the Government's first proposals in Routes to Resolution and other documents.
Ministers blamed the drafting for this omission. My honourable friend Alan Johnson, the responsible Minister, said in Committee in another place on 18th December that there had been a technical fault which had been pointed out by a Liberal Democrat amendment. His words were:
At Third Reading on 12th February, the modified procedures were inserted, so that the clause as it stands and the new section of the Employment Rights Act as it stands in the proposal now would protect an employer from a claim of unfair dismissal where he had satisfied either the standard procedures or the modified procedures of the disciplinary procedure.
But the Government's rethink on the form of the proposed new Section 98A did not go far enough. The reason is to be found in what can happen in real life, not merely in the design of the proposed new section. What happens in real life was described to the Government in Committee. I quote from paragraph 48 of the code drawn up by ACAS on these matters, which describes what can happen in a disciplinary procedure:
It is astonishing that the authors of the Bill, having made a mistake in the first instance, and even having had a rethink over months, have not given the employee the right to rely on a failure of the grievance procedure and as much as the failure of the employer can be relied on in the disciplinary procedure.
It is worse than that. Our proceedings on the second day of Report made it clear that we do not even know what a "grievance" is. We raised with the Minister the question of defining a grievance, which is at the heart of the structure of this part of the Bill. He could not give us a definition. He said that he would write to us, but we still await the correspondence. It seemed that he did not have a brief as to what is meant by "grievance".
Whatever a grievance is, the employee is entitled to have the proper procedure completed by the employer. That includes both the standard and the miserable and unfair modified procedure. If the employer does not complete the statutory disciplinary procedures, that, says the clause, is an unfair dismissal. The same would be true and just as justifiable in the circumstances described by the ACAS code where the grievance procedure should have been completed and was not. I beg to move.
Lord McIntosh of Haringey: My Lords, the House will forgive me if I address the Bill as we have it before us rather than any preceding version of it, and if I address the amendment before the House and Clause 34 in which it is placed, rather than going over the ground of Schedule 2, with which we dealt last week.
These amendments are intended to have the same effect as one which was tabled in Grand Committee; namely, that if an employer did not complete his side of the statutory grievance procedure, and then dismissed the employee, the dismissal would be automatically unfair, even if the dismissal procedure was correctly followed.
Let us look first at what must happen now that we are introducing a statutory dismissal procedure. If he follows the procedure, the employer will have applied the minimum standard of fairness on which we are now insisting in the employee's interests. He will have other obligations under unfair dismissal law as well, but as a minimum we shall have ensured that employer and employee have had to get together to deal with the issues which prompted the employer to consider dismissing the employee. If the employer neglects to follow that procedure, the dismissal will automatically be unfair, as the noble Lord, Lord Wedderburn, recognised and indeed welcomed. The link between the two processes will be obvious to all: the dismissal procedure was not completed by the employer; therefore, the dismissal was unfair.
But if the employer did complete the dismissal procedure, I believe that that should be the end of the matter. I do not think that any good purpose would be served by saying that we should cast the net further back in time and take account of whether there was a prior grievance for which the statutory grievance procedure was or was not completed. As I said, there is an obvious link when failure to follow the dismissal procedure automatically triggers a finding of unfair dismissal. It is very far from obvious that failure to follow a grievance procedure in relation to a grievance that arose before that should trigger an automatically unfair dismissal, even when the dismissal procedure has been followed. I did not suggest that following the dismissal procedure will itself make up for any prior deficiencies in the grievance procedure. I said that there would be no logic in finding a dismissal unfair when the dismissal procedures has been followed simply because an earlier procedure designed for a different purpose has not been followed. But, in practice, if the dismissal was related to the earlier grievance there would be nothing to prevent the employee raising any failure to resolve it as part of the dialogue of the dismissal procedure itself. So I do not think that logically it is right to make a finding of unfair dismissal dependent on the employer's handling of a previous grievance.
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