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The fact is that someone who appears for himself before any tribunal has an ordeal which those of us who have not experienced it ourselves may find difficult to imagine. It is an unfamiliar atmosphere in which the person is faced with unfamiliar proceedings and complicated matters of law which sometimes even lawyers have difficulty in understanding. As my noble friend Lord Ashley has said, many people who suffer from disabilities are extremely articulate and can be very persuasive, but that in itself is not enough to cope with the kinds of questions that may be directed at them when they appear before an industrial tribunal.
Perhaps I may paraphrase what I believe the noble Lord said at Committee stage. If the suggestion is that there is no need to worry because the chairman of an industrial tribunal is perfectly capable of eliciting the bones of the applicant's case in the course of the hearing, no one who has not been in the position of such a chairman will find it easy to imagine the task that we seek to impose upon him. In the first place, he has to be, and appear to be, objective. If he goes out of his way to elicit the case of one of the parties, that will place his objectivity in question. On occasions, all of us have had to interview people who have had a problem. It may take quite some time to ascertain what the problem is, particularly the arguments that should be used in the person's favour. To attempt to do that in a public hearing does not allow for the kind of problems which we seek to impose upon industrial tribunals.
On occasion I have been in the presence of judges who have just been told that they are to hear a litigant in person. I have watched their faces. Never once have I heard a judge say that there is no problem and he is not troubled in the least because he will be able to ascertain the litigant's case in the course of the hearing. That certainly is not the approach of the judiciary.
I add two further pieces of evidence. First, in the commercial courts of this country where litigation takes place between people who usually can afford to be represented, it is not often that one hears someone say that he does not need to be represented because he is perfectly capable of putting his own case. Those who can afford to do so believe that skilled representation is an asset. Secondly, I refer to the report of Professor Hazel Genn. She did a great deal of research into this matter two or three years ago. I know that in the course of debates on this Bill I have sought to impose a good deal of reading on the noble Lord. If he has not read that report I commend it to him. What emerges from those pages is the sheer uncomprehending puzzlement of many people who are unfamiliar with tribunal proceedings when they find that they have to go to a tribunal. Many do not know what question is being addressed, what the issue is or what they have to say to
I am not certain whether the noble Lord, Lord Renton, intended to suggest that there was no problem in relation to conciliation procedures. The noble Lord indicates that he was not. If not, then there is a problem in relation to conciliation procedures, and it is incumbent upon us to address the point. In more and more cases nowadays those who are concerned with these matters believe that a great deal of court time can be saved and that there are many other advantages if conciliation procedures come into operation before the matter is litigated.
Offhand, I can think of three advantages. First, if the parties can be assisted to resolve their dispute, that is enormously preferable to someone having to arbitrate so that one wins and the other loses. Secondly, most the courts and tribunals of this country keep abreast of their workload but frequently do not do very much more than that. A slight increase in workload produces a problem. The question of how many cases to put into a day's list is always a nightmare. If a substantial number of those cases can be diverted, there will be an enormous saving to the courts and the Treasury, which no doubt the Government will welcome. Thirdly, the costs both to the public and to the parties to the litigation can be avoided if these cases can be diverted from the process in the first place.
That is a point well taken in the report of the noble and learned Lord, Lord Woolf, Access to Justice. I shall not add to the noble Lord's burden of reading. However, Chapter 18 contains a great deal of what the noble and learned Lord has to say about the advantages of dispute resolution procedures as they have been tried out in the United States, Canada and Australia. It does not follow that this amendment is the only possible way to address the problem but certainly the case has been made out overwhelmingly that there is a problem to be addressed.
Baroness Gardner of Parkes: My Lords, as someone who has sat for over 20 years as a member of an industrial tribunal, I believe that I must put the other side of the picture. I had not intended to speak to this amendment, although I intend to vote with the Government against it. The noble Lord pointed out that many judges were horrified when they discovered that ordinary litigants would speak. I believe that that reflects upon the judiciary. Fortunately, I do not believe that it applies to all of them. My experience of an industrial tribunal is that very often the applicant is much better off unrepresented. There is nothing worse than to be badly represented. I believe that most tribunals go to enormous lengths to see that the litigant has the opportunity to put his or her case. I believe that to be the whole merit of the industrial tribunal procedure as it is. If counsel appear on both sides, it simply doubles, trebles or quadruples the time that is taken up by the case.
Business expects of the National Disability Council and the legislative framework that it can be seen as the hub of the institutional infrastructure which supports the aims of the Bill. Currently, some indications have been given of what that framework will look like. While the CBI recognises that the precise way in which this will be delivered must be an evolutionary process, it may be helpful to mention what employers really need. They need advice that is independent, authoritative, consistent and readily available at national and local level, whoever and however it is provided and delivered. They also want a helpline facility. There is a particular need for independent advice and conciliation services to be provided for business, as ACAS has on employment, in cases relating to the provision of goods and services. At the moment that does not exist. This should help to filter weak claims and encourage settlements, thereby reducing the need for recourse to the courts. The NDC should be empowered to produce codes of practice and guidance and ultimately be responsible for issues relevant to employment, as well as access at the point when members' tenure on NACEPD is complete in June 1997. Co-ordination is essential for consistency in the interim, particularly given the recent changes to departmental responsibilities which bring in at least three separate government departments: the DTI, the DSS and the DFEE. The codes of practice produced under the legislation to inform and assist all those required to follow their guidance must be heavily publicised and widely distributed.
There are factors in the amendment which obviously meet the concerns of the CBI. However, it disagrees with paragraph (a) of new Section 2A; namely, the proposal for a power of investigation. I think that businesses have appreciated the change in the way in which the EOC and the CRE have approached the elimination of discrimination in business, particularly the greater emphasis now on high quality guidance. For example, the CRE's Racial Equality Standard for Employers is a splendid document and is widely supported. Similarly accessible documents will be needed to support the legislation with which we are currently dealing.
However, by including the power of investigation in my noble friend's amendment, there is a shift away from consensus and elimination of misunderstanding to a more confrontational approach. Surely that is not the right way forward, particularly in an area as complex as this, as many noble Lords have mentioned. One case of disability can be so very different from another.
The power of investigation is not an approach which will maximise goodwill. We want to avoid people facing each other across a courtroom. Experience with other anti-discrimination legislation, and the bodies which support itnamely, the CRE and the EOCsuggests that businesses are worried by the joint role of adviser and enforcer, a situation which can create unnecessary tension.
The arguments for assistance and conciliation are valid, but, as my noble friend Lord Campbell of Croy stated, point to better resourcing of the promised conciliation and advice mechanisms rather than enforcement powers. I still have faith that the Government's conception in that respect can work. Therefore I must reluctantly say that I cannot support the amendment as drafted because of new Section 2A(a) but urge that the Government consider the other elements of the amendment, in particular on research, and incorporate those at Third Reading.
Lord Peyton of Yeovil: My Lords, perhaps I may trouble your Lordships for a moment or so. I am not a habitual or fervent admirer of the legislation which governments bring before us from time to time. I am, therefore, a little surprised to find myself this afternoon quite willingly supporting my noble friend Lord Mackayat least I believe that that is soin rejecting these amendments. I hope that no one will be foolish enough to accuse me of any lack of sympathy with the disabled.
I put forward two reasons. First, I simply cannot bring myself to believe that a government will go through all the labour of producing a Bill of this kind, but will not then wish to see it work, will ignore the advice for which they have asked, and would expect to get away with such folly. I do not believe that for a moment. That is one reason why I should be reluctant to support the amendment.
Secondly, I was impressed and moved, as I am sure most noble Lords were, by the words of my noble friend Lord Campbell of Croy. He knows a good deal about the problem. He referred to the complexity which attaches to enforcement. He was absolutely right in saying that enforcement was a job for government and that a government who do not enforce such a Bill would incur very heavy blame. I should be reluctant to believe that this Government will not be as enthusiastic as possible to see that it works. Therefore, I do not believe that it would be right to accept the amendments. I very much fear what could easily become the habit of distributing those very considerable powers to people other than governments. Professional enforcers of the law are bad enough; amateurs would be much worse.
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