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Lord Burnham: My Lords, I thank the noble Lord for giving way. I was in no way suggesting that small firms should not be subject to the same considerations. I refer to their ability to handle this procedure. If there were a simpler method, that would be more satisfactory.
Lord Haskel: My Lords, I am sure that the noble Lord's remarks will be taken into account by ACAS when preparing its scheme for arbitration and simple procedure. Fundamentally this Bill does not affect the rights of employees but it tries to improve the system for resolving disputes at work. We stand for trust, partnership and co-operation and not confrontation. My noble friend Lady Turner was concerned about
Lord Archer of Sandwell: My Lords, it is customary at this stage in a debate to thank all noble Lords who have participated. That I do with complete sincerity. I am most grateful for the suggestions which have been made and for the general and generous support which the Bill has received. I am particularly reassured by the support it has received from the Front Benches on the part of the three noble Lords who have spoken from that position.
As my noble friend Lord Wedderburn said, I never claimed that the Bill is perfect. That is an easy renunciation on my part because I do not claim credit for drafting it. I therefore escape any of the blame which may arise.
I commend the Bill for the reasons which some of your Lordships have given. I refer in particular to the backlog spoken of by my noble friend Lord Wedderburn, who said that it arose largely from the proliferation of new rights which had been given for all the right reasons. One of the spin-offs, necessarily, is a burden on tribunals and, consequently, a backlog. My noble friend Lady Turner spoke of a period of destabilised employment giving rise to more claims. However, my noble friend Lord Gladwin emphasised that the purpose of the Bill is to get rid of the backlog, which must be in the interests of all who use industrial tribunals.
I have been warned of the wrath to come in Committee. I suspect that it will be wrath of a fairly gentle nature. I do not think that it helps if I try to anticipate all our Committee debates. I was asked about the arbitration proposals. My noble friend Lord McCarthy asked why there should be arbitration at all. That point was echoed by the noble Lord, Lord Thomas. Is it not better to do the whole thing in public? Surely, wherever possible, our system of justice should hold its proceedings in public so we can all see what is happening and we have a system of precedents which we can consult. Normally I would agree with that. But, as my noble friend Lord Haskel said, it is not proposed that industrial tribunals should be abolished and replaced totally by arbitration. That will be one other option in what the parties consider to be appropriate cases. The noble Lord, Lord Thomas, said that what was being suggested was intended only to divert cases from industrial tribunals. That is exactly the case. Why that should be regarded as a condemnation of the proposal escapes me for the moment. No doubt in our subsequent debates the argument will be developed.
It may be possible to frame arbitration in such a way that one eliminates those issues which--because we have printed forms--necessarily confront industrial tribunals. That may save a lot of time. I agree with the noble Lord, Lord Burnham, that speed in itself is not a
The noble Lord, Lord Thomas, surprised me as he almost suggested that speed was to be deplored and that leisurely proceedings should be embraced for their own sake. He drew a picture of leisurely cross-examination at great length by fat cat lawyers or whoever, as though this was--
Lord Thomas of Gresford: My Lords, I never believe in lengthy cross-examination. I do not even believe in fat cat lawyers, if it comes to that. I do not think that the noble and learned Lord quite understood what I was trying to say. I am not suggesting that the proceedings should not be as speedy as possible, but that there should be full consideration. I am concerned that too much haste means that a person feels he does not have his day in court.
Lord Archer of Sandwell: My Lords, I say at once that I would never dream of suggesting that the noble Lord practises unduly lengthy cross-examination. I know from his reputation that that would be totally false. However, I gained the impression at one stage that he rather thought that leisurely proceedings were to be embraced for their own sake. Of course proceedings should take the time which is required for justice. However, if that can be done by arbitration in a suitable case I should have thought that might commend itself to employees.
Lord McCarthy: My Lords, I never said that there should not be arbitration, and I never said that there should not be speed. What I am trying to get the noble and learned Lord to say--and what I have tried to get the Government to say, without success--is whether some additional incentives will be included to improve arbitration so that we obtain more than speed; we obtain justice.
Lord Archer of Sandwell: My Lords my noble friend has anticipated what would have been my next sentence. I was going to pick up the point which he made; namely, the more incentives we can include, the better. I wholly support that idea. If the noble Lord has any proposals to make, as far as I am concerned at least, there will be an open ear. I gather that there will also be an open ear on the part of my noble friend Lord Haskel.
My noble friend Lord McCarthy then asked the converse question: what happens if people are pressured to adopt arbitration? That is a question which can be asked in relation to almost any option which one gives. What happens if undue pressure is put upon people to take one course rather than another? I am not sure that one can ever say that any course is pressure proof. However, if we can think of ways of resisting pressure that can lead only to improvements in the Bill.
My noble friend Lord McCarthy asked who the arbitrators would be. To a great extent, my noble friend Lord Haskel answered that question. The Bill does not prepare a scheme; the scheme will be prepared by ACAS. If ACAS can prepare a draft scheme and give us some ideas, incorporating those suggested by the noble Lord, Lord Phillimore, that might greatly aid our debates in the autumn.
My noble friend Lord Gladwin raised the question of the words "or otherwise re-employed" in Clause 7. He was kind enough to warn me that he might raise the matter. My noble friend is right. The reason for those words is that they offer arbitrators greater flexibility. It may very well be that one of the attractions of arbitration is its greater flexibility. However, I take my noble friend's point that we must be careful not to change the substantive law and the well understood remedies by what is a side-wind. Again, I should be happy to continue our discussions in the autumn.
The noble Lord, Lord Thomas, raised the matter of determinations without a full hearing. He rather gave the impression that there cannot be many occasions when that is appropriate. I am not sure. I believe that there are such occasions and that, if asked, any experienced chairman of tribunals would agree. The noble Lord then said that if people were to be asked to consent to that, they should have accessible legal advice. I gave my reasons for not wanting to write that provision into the Bill in my introduction. I can see how desirable it would be if there were some other way of ensuring that; I hope that we may find ways of encouraging people to take such advice.
The noble Lord also said that he was not very happy with the provision that, once the advice had been given, it was not possible to withdraw it. That has to do with administration. If someone, having given consent and the whole proceedings having then gone ahead on that basis, says, "I've had second thoughts about this; I'm going to change my mind. We shall have to go right back to the beginning and start again", it would impose intolerable burdens on the administration. Again, if there are ways of compromising on that point, perhaps we can do so.
The noble Lord, Lord Phillimore, was unhappy with compromise agreements, particularly because, as matters stand, if we are not to have qualified lawyers giving the advice, it could be someone without any qualifications at all. The safeguard against that is that one has to have indemnity cover. Obtaining such cover, as the noble Lord, Lord Burnham, said, is not an easy matter in any case. In fact, one of the problems is that it will be almost impossible for many perfectly well qualified people to obtain it. Most of us could give examples of the kind of people who might give very
I turn to in-house procedures. My noble friends Lord Wedderburn, Lady Turner and Lord Gladwin were troubled that in-house procedures mean that the last word rests with the employers. I would point out, as did my noble friend Lord Haskel, that tribunals already take account of ACAS guidance which states that employees should be brought into the consultations. I know that my noble friend Lord Wedderburn has his reservations about that. The matter should be discussed further. I see the dangers. However, I hope that he will understand what are the reasons for encouraging people not to go to tribunals if the matter can be resolved more easily at an early stage.
My noble friend Lord Wedderburn and the noble Lord, Lord Phillimore, asked about legal officers. I anticipate that they will probably be people who are barristers and solicitors of a certain seniority. The noble Lord, Lord Thomas, is right. The concept is that of an interlocutory judge. Almost by definition, an interlocutory judge will not necessarily have the qualifications and training of a more senior judge. So it is in a sense a way of saving on the time of chairmen. I should not have thought that the proposal is any the worse for that; in fact, that is one of the purposes of the Bill. Again, we shall hear more in due course as to who they will be.
A number of proposals came within what I tried to formulate in my introduction as matters that might be better left to other legislation. My noble friends Lord Wedderburn and Lord Gladwin spoke about the need for an improvement in the substantive law in this area. They are pushing at an open door so far as I am concerned. I am not sure, however, that this is the Bill under which that can be achieved. My noble friend Lord Gladwin mentioned in particular the two-year rule, and I could not agree more.
The noble Lord, Lord Burnham, suggested some kind of exemption for small firms. He may be pushing at a rather more closed door in my case in that respect. But our debates may have to be in relation to other legislation.
The noble Lord, Lord Thomas, mentioned that the noble Lord, Lord Lester, was kind enough to write to me about the two proposals mentioned by the noble Lord. Both are matters in relation to which the Government are presently involved in working groups. It may be more sensible to wait to see what those groups produce. Again, it is a matter for discussion later.
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