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Lord McIntosh of Haringey moved Amendment No. 4:

"( ) Rules under subsection (1) may include provision authorising the Appeal Tribunal to have regard to a person's ability to pay when considering the making of an award against him under such rules."

The noble Lord said: My Lords, I spoke to this amendment when I discussed Amendments Nos. 1 and 2. I beg to move.

On Question, amendment agreed to.

Clause 28 [Pre-hearing reviews]:

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville) moved Amendment No. 5:

    Page 35, line 10, at end insert—

"(1) Section 9 of the Employment Tribunals Act 1996 (c. 17) (pre-hearing reviews) is amended as follows."

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The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 6 and 7.

On Report, my noble friend Lord Wedderburn proposed an amendment which would have had the effect of restricting striking out at a pre-hearing review to the circumstances set out in rules 4, 7 and 15 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. I undertook to see whether we could table an amendment to Clause 28 at Third Reading which would encapsulate the spirit of my noble friend's amendment.

I believe that the amendment will do so by providing that a tribunal may not strike out at a pre-hearing review on a ground which does not apply outside such a review. The grounds for striking out proceedings under the 2001 regulations are contained in rules 4, 7 and 15, and include failure to comply with an order or direction imposed by the tribunal or when the originating application or notice of appearance—or anything in it—is scandalous, misconceived or vexatious. The amendment does not specifically mention the rules, not least because future revisions may lead to renumbering.

As I said on Report, we have no intention of widening the grounds in the regulations on which tribunals may currently strike claims out, although we may consult on whether to amend rule 4 of the procedure rules to take into account the new powers that the presidents will have to issue practice directions, so that tribunals could strike out cases for serious failure to comply with them. The only change resulting from this clause will be that it may be possible to strike out at the pre-hearing review stage. This amendment will ensure that the grounds for striking out may not be wider than those applicable at other stages. I beg to move.

Baroness Turner of Camden: My Lords, I thank my noble friend on the Front Bench for moving the amendment. As he has rightly pointed out, this issue was raised sharply by my noble friend Lord Wedderburn during previous stages of the Bill. We were concerned about the provisions in the Bill, which seemed to confer wide powers to strike out. This has now been dealt with by the amendment before the House. The Government are to be applauded for taking note of what has been said previously on this matter.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendments Nos. 6 and 7:

    Page 35, line 11, leave out "section 9(1) of the Employment Tribunals Act 1996 (c. 17)" and insert "subsection (1)"

    Page 35, line 15, at end insert—

"( ) After subsection (2) there is inserted—
"(2A) Regulations under subsection (1)(b), so far as relating to striking out, may not provide for striking out on a ground which does not apply outside a pre-hearing review."

On Question, amendments agreed to.

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Clause 37 [Use of alternative documents to give particulars]:

Lord Sainsbury of Turville moved Amendment No. 8:

    Page 41, line 32, leave out "of" and insert "on which"

The noble Lord said: My Lords, in moving Amendment No. 8, I shall speak also to Amendments Nos. 9 to 14. These are minor but necessary technical amendments to Clause 37 which will allow employers to use a letter of engagement or a contract of employment to satisfy the requirement to provide employees with a written statement of employment particulars.

A written statement must give a date by reference to which it operates. Logically, any alternative document fulfilling the function of a written statement must also give such a date. The current text of Clause 37 refers to,

    "the date of the document".

However, there may be uncertainty about the date of any particular contract of employment. Taken together, Amendments Nos. 8 to 13 therefore clarify the position by making the relevant date the one on which the document was given to the employee. With that made clear, new Section 7B(2) of the Employment Rights Act 1996 performs no useful function. Amendment No. 14 therefore removes it. I beg to move.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendments Nos. 9 to 14:

    Page 41, line 33, after "document" insert "is given to the employee"

    Page 41, line 34, leave out "of" and insert "on which"

    Page 41, line 35, after "applies" insert "is given to the employee"

    Page 41, line 37, leave out first "of" and insert "on which"

    Page 41, line 38, after "applies" insert "is given to the employee"

    Page 42, leave out lines 7 and 8.

On Question, amendments agreed to.

Baroness Miller of Hendon moved Amendment No. 15:

    Before Clause 41, insert the following new clause—

In section 23(5) of the Employment Relations Act 1999 (c. 26) (power to confer rights on individuals), the words "or otherwise" are omitted."

The noble Baroness said: My Lords, I regret having to table this amendment a third time. I say that not by way of an apology but to explain that I was compelled to do so by the Government's obdurate refusal to accept the deletion of two words from the Employment Relations Act 1999.

The amendment's positioning has changed. Originally it related to Schedule 7, which deals with minor and consequential amendments. The Minister is always polite across the Dispatch Box but when dealing with this amendment the noble Lord was patronising towards me. He said once that the amendment started with a bang and ended with a

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whimper. On another occasion, he gave numerous examples involving someone named Doreen. I would not mind except that, unusually for me, I doubted myself and wondered whether I had got it wrong. I sought the opinion of the eminent and learned noble Lords, Lord Ackner and Lord Brightman. They told me that this was not a minor matter and that the amendment was important but needed to be somewhere else—so I changed its position.

This wholly harmless amendment would delete what I originally believed to be tautology but the Government's obstinacy, coupled with the Minister's specious and meaningless arguments, convinces me that there is something more to it and that we must get rid of those unnecessary words.

Section 23 of the Employment Relations Act 1999 gives the Secretary of State the power to confer certain rights on individuals. Subsection (5) states:

    "An order under this section may make provision in such way as the Secretary of State thinks fit, whether by amending Acts or instruments or otherwise".

I will return to the words

    "in such way as the Secretary of State thinks fit"

but "or otherwise" must be removed.

On 4th December 2001, I asked the Minister what those words meant. He frankly admitted that he did not know. He subsequently wrote to me:

    "The use of 'or otherwise' was intended to ensure that an order under section 23 could also apply to rights to individuals by means of a free-standing provision rather than by an amendment".

The words

    "rather than by an amendment"

mean that the Government admit that "or otherwise" is in addition to an Act or a statutory instrument. What is a "free-standing provision"? My advisers and I scoured the text books but were unable to find any reference to a constitutional device named a free-standing provision. It is abundantly clear that the Government are trying to introduce a new device that will enable them to circumvent Parliament by use of a Ministerial decree.

My advisers and I looked for a similar provision elsewhere but could find none. Some time ago, I asked the Library: it was unable to find anything similar. Only today I received a letter from the senior Library clerk:

    "We have searched the Lexis database of the statutes but have not found any further examples of the phraseology used in section 23(5) of the Employment Relations Act 1999".

In previous debates, I have repeatedly asked the Minister to explain "a free-standing provision" but all he wrote was that,

    "this was simply a way to give the Secretary of State the flexibility to extend rights . . . in a way that seemed best from a drafting point of view".

He repeated the flexibility argument in all the debates but did not explain how the "or otherwise" powers would be exercised—despite my suggesting fanciful ways, such as press advertisements or handing out leaflets in Whitehall.

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On Report, the Minister admitted that the wording

    "enables an order made under Section 23 to extend rights to individuals by means of a free-standing provision"—

again that meaningless phrase—

    "in an instrument . . . rather than by an amendment to existing primary or secondary legislation".

What kind of instrument? I know only of statutory instruments. That comment confirms my suspicions about a ministerial decree. Fortunately, we have not yet reached the stage of allowing ourselves to be governed that way. The Minister also said on Report:

    "It is merely a question of how an order under Section 23 is drafted".

Not so. The Minister admitted that "or otherwise" is an addition to the power to make a statutory instrument. The plain meaning of the words also make that absolutely clear. The Minister said that the words,

    "do not mean that the Secretary of State can . . . extend rights without making an order".

If that is so, what is the "or otherwise" process? The Minister claimed also that,

    "an affirmative order is required, as is stated in the legislation".".—[Official Report, 18/6/2002; cols. 702-703.]

On the contrary. Section 23(5) provides for rights to be altered in three ways—a new Act of Parliament; an instrument, which I readily agree requires parliamentary sanction; "or otherwise", for which there is no qualification or precedent.

As to the Minister's claim that the Secretary of State cannot extend rights without making an order, I remind your Lordships that Section 23(5) of the 1999 Act commences:

    "An order under this section may make provision in such a way as the Secretary of State thinks fit".

I ask the Minister to convince me and your Lordships—so far, he has dismally failed—by explaining how that power would be exercised, if not by a new Act or instrument.

The Minister insists on treating the issue as trivial. In Committee he called it a "whimper." On Report, he condescendingly said that he would make a final attempt to explain the point to me. The Minister has totally missed the point. At the risk of continuing to bore the noble Lord, I tell him that the power to alter people's rights is not in issue but how those alterations should be made.

An Act of Parliament would be unobjectionable, as would a statutory instrument but "or otherwise"—importing as it does anything that the Secretary of State thinks fit—is not acceptable. It is a dangerous precedent that, despite the Minister's protestations, introduces the possibility of the Government by-passing Parliament. That provision should be removed. To quote the Minister, it is really quite simple. I beg to move.

4.45 p.m.

Lord Ackner: My Lords, I congratulate the noble Baroness on rigidly adhering to the principle that she enunciated. This is not a small and technical matter, as

27 Jun 2002 : Column 1531

the Minister said; it is an important issue that gives rise to the question why on earth the words "or otherwise" were used. They must serve some purpose.

What does the phrase "free-standing" mean? I have heard of free range and of free-standing in relation to the law on fixtures and fittings but what does it mean here? The Minister has never indicated. Perhaps it means free-standing in the sense that the Minister or Government can operate by decree—for example, by placing a notice in The Times saying that as from the first of the month the following will be affected by the Act. There is nothing to stop that being done.

The Minister said that the affirmative resolution procedure would apply to anything done under "or otherwise". But, if one looks at the Act, that opinion is very difficult to sustain because Clause 50 on page 58 deals solely with orders and regulations.

Clause 50(2) provides that,

    "Any power of the Secretary of State to make orders or regulations under this Act is exercisable by statutory instrument",

and it goes on to state that the affirmative procedure must be adhered to. But that is in regard to orders or regulations. We are not concerned with that, otherwise there would be no need to put the offending words in.

There is a very heavy onus on a government that have expressly taken power to make alterations in the only ways provided for—that is, by amending an Act of Parliament or by secondary legislation—to justify the addition of "or otherwise". I suggest that this is either a draftsman's aberration or, alternatively, that the Government want to ensure that they have every conceivable power to do what they wish. In the debate on Report, the Minister said in terms, "This does not give us any greater power". One then asks "Well, why have it? What are the words designed to do? To what are they directed?".

This raises an important matter. I rely on the views of my noble and learned friend Lord Brightman, whose wisdom on drafting knows no equal in this House or perhaps anywhere else. He said that this amendment is important and should be put appropriately in the Bill and not in Schedule 7. I hope that the Minister understands that this is not a small technical matter on which to patronise the noble Baroness. It raises an important, fundamental matter. It is for the Minister to justify what, on the face of it, looks like unlimited power.

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