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Lord Archer of Sandwell: I thank my noble friend Lady Turner of Camden for her kind commendation of the Bill. Clause 2 confers on the Secretary of State the power to make regulations authorising the tribunal in certain circumstances to determine the process without a hearing or without a full hearing. As my noble friend said, one proposal is that that may be done where the parties have consented in writing. Amendment No. 1 would provide that that consent would be effective only if each party had first received adequate legal advice.
I say at once that we discussed this on Second Reading and that my initial reaction to those provisions was exactly the same as that of those noble Lords who have spoken today. Noble Lords will recall that at Second Reading I said that that had also been the reaction of the Council on Tribunals which I have the privilege to chair. Accordingly, I repeat the declaration of interest which I made then. I said that I had been persuaded otherwise for two reasons. First, I believe that we should be cautious about compelling someone to take advice on pain of being deprived of an option that that person has said he or she wishes to exercise. Surely, one human right is the right not to take advice if one does not wish. I would not go to the stake for the absolute application of that principle. Something turns on the nature of the decision to be made. When one comes to Clauses 7 and 8 and the option to submit a dispute to arbitration, the advantages and disadvantages of taking that course are not obvious to everyone without explanation. As to that, I take a different view.
In relation to the decision that we are now discussing, I believe that the matter is fairly simple. As a general principle I believe that a person should not be compelled to take advice and that should overrule the other considerations. That is perhaps a theoretical objection. But there is a much more severely practical reason why I took the view that I did. The effect of insisting that a party takes advice before the choice is effective is that if the individual has not done so the consent is invalidated, and anything then done pursuant to it is similarly invalidated. If it emerges subsequently that advice has not been taken, the whole determination will be invalid. That means that the tribunal cannot safely proceed without ensuring that proper advice is taken, and the other party cannot be sure of his or her position without similarly ensuring.
But the whole purpose of the proposal is to permit a disposal without a hearing, or without a full hearing. If a party does not want a hearing, presumably he or she will not wish to attend; yet someone will now have to ask that person what advice he or she has taken, who has given the advice, what qualifications the person has and what that advice is. That would defeat the whole purpose of the Clause 2 procedure and mean more preparatory work than the time which would be saved by the procedure.
My noble friend seeks to provide that the advice should be adequate. I understand why. There is no point in taking advice unless it is adequate. But the tribunal and the other party will therefore have to inquire into the adequacy of the advice before they proceed. Of course, the tribunal may now determine proceedings in the absence of a party and there is no requirement that a party should take advice before deciding whether or not to attend the proceedings. The provisions of Clause 2 simply spare the tribunal from arranging a public hearing. It would be very strange, would it not, if a party did not need advice for absenting himself altogether and yet could not consent to a partial hearing or a hearing on papers without taking advice?
Following what I said at Second Reading, the Council on Tribunals has considered the matter and has been persuaded to take the view that I now take. For those reasons, I hope that my noble friend will not press her amendment. But that does not mean that I do not consider advice to be highly desirable. I agree with all noble Lords who have spoken. When my noble friend Lord Haskel speaks I hope that he will give an undertaking that the Government will do everything in their power to make advice available and encourage parties to seek it. When a letter goes out to the parties from the tribunal one possibility is that that should contain information about advice that is available and strongly encourage the parties to take it, but it seems to me that to require it as a condition of the validity of proceedings defeats the whole purpose of the provisions of Clause 2.
In relation to the comments of the noble Lord, Lord Campbell, consent once given cannot be withdrawn. That is part of the provision in the Bill, and it is quite deliberate. If it were possible for a party to give consent to a particular form of proceeding and, when it was well under way, to say that he had thought
I turn to Amendments Nos. 3 and 4. I observe that the groupings with which noble Lords have been presented can be described only as eccentric. I made some suggestions about them. Those suggestions were ignored. It is not the first time in my life that my advice has been rejected, and I do not suppose for a moment that it will be the last. However, I should like to make clear that it is not my fault. Therefore, we are discussing topics that do not really belong together.
Before I address my noble friend's amendments, perhaps I may spend a moment clarifying the provision that she seeks to amend. The provision is an enabling provision that empowers the Secretary of State to make regulations. The regulations may authorise a tribunal in certain circumstances to determine proceedings not without a hearing but without hearing anyone other than the parties. That may provide an answer to the point raised by the noble Lord, Lord Lester. The parties are entitled to attend and they can make any submissions that they see fit.
In what circumstances may that procedure be authorised? The answer falls into two parts: first, where the facts are not disputed. If it appears at the outset that there is a dispute on the facts, or if a dispute of fact emerges during the proceedings, this provision does not apply. For the moment I am addressing only Amendment No. 3. Secondly, it applies only if upon those facts the tribunal is bound by the decision of a superior court to decide the case one way. The question that arises is: what purpose is to be served by calling witnesses? The purpose of Clause 2 is to protect the tribunal from having to hear proceedings that cannot serve any purpose. In the circumstances set out it appears that a full hearing with witnesses cannot serve any purpose.
I turn to Amendment No. 4. If an individual does not have the right to bring a complaint, the tribunal has no jurisdiction to hear the case. One would have thought it sensible to sort out as swiftly as possible at the outset the question whether or not the tribunal had jurisdiction without the need to hold a full hearing with the parties and witnesses being present. To require a full hearing in all those cases will simply slow down the hearing of cases, which is the very purpose that we all seek to address in these debates. There must be many cases where a full hearing is unnecessary, a waste of time and resources and simply holds up adjudication on other people's rights. I hope that on reflection my noble friend will think again about these amendments. I seek to give her the opportunity so to do.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, perhaps I may seek to clarify one point. I entirely accept everything he has said about the parts of the Bill that exclude only third parties from hearings and not the parties themselves. As far as
Lord Archer of Sandwell: I hope that I will not embarrass the noble Lord, Lord Haskel, if I express total agreement with what the noble Lord, Lord Lester, has just said about the provision of aid and advice. We might discuss whether there are other ways of doing it, but he and I will be solidly shoulder to shoulder on this. I do not believe that the amendment addresses that problem, and so I do not think that this is the occasion on which to address it. It seems to me that nullifying the effects of Clause 2 just means that the cure is worse than the disease.
Lord Wedderburn of Charlton: I support my noble friend Lady Turner in regard to Amendment No. 4, which may perhaps be lost in the debate on the other amendments, in view, as my noble and learned friend said, of the somewhat eccentric groupings that we have today. One of the cases in which a worker should not have anything other than a proper and full inquiry by the tribunal is the matter which either opens or closes the door to the portals of justice in the employment tribunals--the decision as to whether or not he or she is an employee.
The next time Members of the Committee go to buy their maxi-burger across the counter from a young person they should try to decide whether that young person is an employee. You will almost certainly find that they are on zero hours; that is to say, that they come at beck and call--the Germans call it kapowaz--of the employer. They come when called; they go when told to go away. Some of them are paid for the time that they are there. Others I have come across--extraordinary--are paid for the number of minutes they move; that is to say, they come when called and sit on a chair. When business goes up they are called for to serve more maxi-burgers.
Members of the Committee may be able to work out whether there is a contract with a particular young person; what that contract is; whether it is unilateral or synallagmatic; whether it is a normal contract to pay a certain amount for certain hours. The types are almost endless. It is at that point--whether or not the tribunal can find a contract of employment--that justice is either shut out or opened, at least as a possibility.
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