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I found the Minister’s phrase that there would “effectively and systematically” be promotion of independent mediation remarkably helpful. That is a substantial move forward from our previous debate, although at that time I was erring down the road of compulsion. He and other noble Lords persuaded me that perhaps, as with Michael Gibbons’s findings, compulsion is not necessarily the right way forward.

I was particularly intrigued by the Minister’s comment that demand may exceed supply. I hoped that he might return to the point that I raised specifically, which was that when demand exceeds supply, does ACAS have the power to engage the private sector to bring its resources to assist ACAS in an independent mediation? I can well understand that if parties have decided to go down the mediation route, ACAS should not pay the bill, but it surely fits in with the Government’s attitude to public/private partnerships that there should be a close working relationship between those who provide mediation services and ACAS. When demand exceeds supply, there would then be an opportunity to press a lever marked “private-sector support” that ACAS can call in.

Lord Jones of Birmingham: My Lords, I am pleased to reassure the noble Lord, Lord Hunt, on that point. I am a huge fan of public/private partnerships and the fusion of powers, facilities, opportunities, skill and expertise of both sectors to come to a better result. Indeed, what works matters and what matters works. It will come down to a question of cost, but I will investigate the issue and take a personal interest in it.

Lord Hunt of Wirral: My Lords, I am grateful to the Minister who, I understand, has additional resources, to which he referred. I hope that they will be put to the best possible effect, giving real value for money for the taxpayer, which must involve some form of public/private partnership.

I am grateful to the Minister for what he said about the code. I have written to him suggesting an addition that might be made to it to ensure that conciliation, mediation or independent investigation should be included in the code. I know that some are a little worried that that would add to the expense, but the great advantage of mediation, as my noble friend Lord Henley knows, is that there is comparatively little preparatory cost. All the mediator requires to know is exactly what the parties want to achieve and a brief history of what has happened. The mediator then decides how best to resolve the dispute. It is all pretty easy, quick and simple.

Lord Jones of Birmingham: My Lords, I am in receipt of the noble Lord’s letter, dated 15 May. I will revert back to him on all four points, especially the suggestions on the code, as quickly as possible.



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Lord Hunt of Wirral: My Lords, what can I say to the Minister except “thank you”? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Conciliation before bringing of proceedings]:

[Amendments Nos. 11 to 13 not moved.]

5.30 pm

Lord Henley moved Amendment No. 14:

The noble Lord said: I move this amendment, which is in my name and that of my noble friend Lady Wilcox, at the suggestion of the noble Lord, Lord Wedderburn of Charlton, who sadly could not be here today. It is similar to one that he moved towards the end of our proceedings on the first day in Committee, as long ago as 4 February. I hoped that he would be here and that we could have the amendment down in both his name and mine. Both of us have been here for some 30 years and it would have been an unusual combination of names on an amendment. I make that point to illustrate that this amendment is not party-political; it merely makes a simple and basic point about mediation, as we discussed on the previous amendment.

The simple point is that one should always remember that mediation is not arbitration or conciliation; it is something different. The important thing about mediation is that the mediator makes it clear that everything that is said to him is off the record, without prejudice, and that he will forget all of it after the mediation is closed, whether or not that mediation has been successful. Therefore it is important that the mediator, more than anyone else and even with the consent of the parties, should be precluded from taking part in later proceedings. As both the noble Lord, Lord Wedderburn, and I understand it, it would be possible under the Industrial Tribunals Act 1996 for a mediator subsequently to be a member of an employment tribunal. As the noble Lord, Lord Wedderburn, made clear on 4 February—I hope that I, too, made it clear—we think that it would be wrong in principle for a mediator ever to act in a judicial or quasi-judicial role in the same case. Therefore it is important that we amend the Act in the way that is suggested by this amendment, to make it clear that a mediator can never act as a member of a tribunal, even with the agreement of the parties. That is why, in my proposed new subsection (2), we substitute the words,

The noble Lord, Lord Wedderburn, felt very strongly about this. I feel very strongly about it and I cannot see why the Government on that occasion resisted the amendment. I hope that they will not resist this amendment and that, even if they cannot accept the wording, they will say that they will bring forward something suitable at Third Reading. It is important

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that it is made clear that a mediator should not act later as a member of an employment tribunal. I beg to move.

Lord Bach: My Lords, I am grateful to the noble Lord, Lord Henley, for this amendment, which would preclude an employment judge from taking part in the determination of any case in all circumstances where he or she has been involved in mediation. The present legal position is that the express consent of all parties is required before a mediating judge can determine such a case.

I agree with the noble Lord that in general, and as a matter of course, it is desirable that mediating judges should play no part in the determination of cases. Parties need to have confidence in the impartial judgment of the tribunal. However, if they do, why should it be impossible for the mediating judge to be part of the employment tribunal? It is because the parties need to have confidence in the impartial judgment of the tribunal that, in the recent Tribunals Service trial of judicial mediation in employment tribunals, the rules of the scheme provided that a mediating judge could not take part in the judging of a case. It is right that this should be the general rule.

We should be mindful that “mediation” is, as I understand it—there are much greater experts in the House than me—a fairly elastic term that is undefined in law. It is a broad church that can stretch from activity that is close to conciliation, where the mediator seeks to establish common ground between parties but does not take a view on the substantive merits of the case, to a model more like arbitration, where the mediator proposes a solution having heard the arguments of the parties. Where it is more akin to conciliation, we think that there is an argument for using the law to prevent a judge’s involvement. We think that the argument for using the law to prevent a judge’s involvement in the determination of a case is less strong in the mediation model, which has been used in the recent pilot of judicial mediation in employment tribunal cases.

We sympathise with the arguments advanced in favour of the amendment, but is it right to prescribe in legislation that no mediating employment judge can ever subsequently be involved in determining a case? There could be circumstances in which such involvement would be in the interests of justice. In a complex case, a mediating judge would become familiar with the facts and, if mediation failed, there might be unnecessary delay if the parties had to set out their respective positions in detail to another judge. In such circumstances, ought we to say—this is the question that I pose to the House—that in law, even if the parties themselves desire it, the original judge cannot continue in any circumstances to determine the case? We are not sure that that is not going too far.

Parliament accepted the argument that I have just put forward in relation to other tribunals when it passed the Tribunals, Courts and Enforcement Act last year. That included a provision that a mediating judge could take part in the determination of a case where all parties agreed. We are not sure that the case has been made for treating mediation in the context of

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an employment tribunal differently from mediation in the context of other tribunals. Our view is that the existing legal position, whereby a mediating judge could be involved in subsequent determination, but only with the express consent of the parties, is the appropriate way for statute to deal with this matter. That is why, although sympathetic to much that the noble Lord, Lord Henley, has said, we think that it would be wrong to put this into legislation and I invite him to withdraw his amendment.

Lord Henley: My Lords, I am afraid that I am not happy with that response. I am sad, again, that I do not have the noble Lord, Lord Wedderburn, here to argue the case better than I can. However, I quote from what he said in Committee:

Earlier, on the subject of consent, he made his argument even clearer:

This is a very small amendment. I appreciate that many of the noble Lord’s friends may be away in Crewe and Nantwich, but on this occasion I prefer to test the opinion of the House.

5.38 pm

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 176.


Division No. 1


CONTENTS

Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Bew, L.
Bottomley of Nettlestone, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cathcart, E.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Cumberlege, B.
De Mauley, L.
Denham, L.
Dixon-Smith, L.
Eccles, V.
Eccles of Moulton, B.
Fookes, B.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Glentoran, L.
Goodlad, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hanham, B.
Henley, L.
Howard of Rising, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Roding, L.
Laird, L.
Lawson of Blaby, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mancroft, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.


19 May 2008 : Column 1285

Noakes, B.
Northesk, E.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Perry of Southwark, B.
Plumb, L.
Rawlings, B.
Reay, L.
Roberts of Conwy, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Trefgarne, L.
Trimble, L.
Tugendhat, L.
Ullswater, V.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wilcox, B.
Willoughby de Broke, L.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Afshar, B.
Ahmed, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Bilston, L.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brookman, L.
Brooks of Tremorfa, L.
Carter of Coles, L.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Cotter, L.
Craig of Radley, L.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
Dixon, L.
Donoughue, L.
D'Souza, B.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Fearn, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Garden of Frognal, B.
Gavron, L.
Golding, B.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greaves, L.
Hamwee, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Birmingham, L.
Jones of Cheltenham, L.
Jordan, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
McNally, L.
Malloch-Brown, L.
Mar and Kellie, E.
Masham of Ilton, B.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.


19 May 2008 : Column 1286

Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Neuberger, B.
Northover, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Plant of Highfield, L.
Prosser, B.
Ramsay of Cartvale, B.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Snape, L.
Steel of Aikwood, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Truscott, L.
Tunnicliffe, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warner, L.
West of Spithead, L.
Whitty, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Hornsey, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.49 pm

Baroness Turner of Camden moved Amendment No. 15:

(a) the organisation or organisations responsible for recovery on behalf of the claimant;(b) the powers of such organisations in enforcing the judgement;(c) the regulatory framework in which such organisations shall utilise their powers.”

The noble Baroness said: My Lords, this amendment has been suggested to me by Citizens Advice. Its aim is to deal with the problem of non-payment by rogue employers of employment tribunal awards and the resultant difficulty and hardship caused to the claimants concerned. At present, and even after the implementation from April 2009 of the welcome provisions in the Tribunals, Courts and Enforcement Act 2007, such claimants are faced with having to take legally complex, time-consuming and costly enforcement action in the civil courts. Many simply do not do so, while others try but then give up. Rogue employers are aware of this and calculate that non-compliance pays. The amendment would enable unpaid awards to be enforced by the state on behalf of the claimant using existing civil court enforcement mechanisms.



19 May 2008 : Column 1287

Just how widespread a problem is this? A recent survey conducted by Citizens Advice showed that in 2006-07 the 430 citizens advice bureaux in England and Wales dealt with an estimated 1,040 inquiries about enforcement of unpaid tribunal awards. In the first two quarters of this year, these bureaux dealt with an estimated 525 such inquiries. This would suggest that the total number of unpaid awards is in fact in the region of more than 1,000 a year.

There is no doubt at all that vulnerable people face real hardship as a result of these failures. As I have already indicated, the Government have sought to remedy the situation by the provisions included in the Tribunals, Courts and Enforcement Act 2007, but Citizens Advice has said that these do not go far enough. It is the common experience of CAB advisers that claimants’ registration of unpaid awards in the county court, which under the Act is to become automatic and free of charge, frequently fails to secure a payment of the award, as the consequences for the employer of continued non-compliance are negligible. Citizens Advice has provided details of a number of cases in support of this, but because of the lateness of the hour, I shall not refer to them, although there are a number of sad cases where people are facing real difficulty because of failure to secure money that is rightfully theirs. For an individual who has not received his award, the process of enforcement that must follow registration of the unpaid award is legalistic, time-consuming and expensive because of the need to pay court fees and, in some cases, to engage the services of a solicitor. Many people simply give up. Rogue employers are aware of that and calculate that non-compliance pays, hence the amendment providing for unpaid awards to be enforced by the state. It may be argued that that would cost a lot, but if claimants are unable to access money that is rightfully theirs, they become impoverished and then have recourse to the benefit system, which also costs the taxpayer money. Moreover, where such enforcement action is successful, costs could presumably be recovered from the defaulting employer. This amendment is based on a great deal of experience in this area, and I hope that the Government will be prepared to accept it. I beg to move.

Lord Hoyle: My Lords, I rise to speak briefly in support of the amendment moved by my noble friend Lady Turner. I shall not take up the time of the House because I know we are up against it, but there are over 1,000 cases, often involving people who do not understand what they have to do to recover the money and, even if they do, cannot afford to follow it through. We are following the advice given to us by Citizens Advice, and all that is being asked is that the Government take over these cases to ensure that these people obtain justice. I hope that when the Minister replies he is sympathetic to what we are putting forward.

Lord Razzall: My Lords, I, too, support this amendment. As the noble Baroness rightly said, this has been a concern of Citizens Advice for a considerable number of months. I shall not repeat what the previous two speakers said, but it is apparent that those less well off in our society are often being exploited by rogue employers. They eventually get an award, often

19 May 2008 : Column 1288

at the instigation of the local citizens advice bureau, and then they give up because they cannot face the procedure or afford the legal and court fees. Like the noble Baroness, this side has been arguing for this. We have both taken up the advice and research of Citizens Advice, and I hope that the Government will find a way of taking on board the points that have been made.

Lord Bach: My Lords, I thank my noble friend for her amendment. We discussed this matter in Grand Committee on an amendment moved by my noble friend Lord Wedderburn. It addressed the same issue, although in different terms. I said then, and I maintain, that the Government recognise the need to address the recovery of awards, but we do not believe that direct enforcement, as proposed in this amendment, is the right way to tackle the issue.


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