Employment Bill [HL]

My Lords, I join the noble Baroness, Lady Gibson of Market Rasen, in her tribute to the cadet force adult volunteers—I could not agree with her more; secondly, I declare my interest as a partner in the national commercial law firm of Beachcroft LLP and my other interests set out in the Register; thirdly, I welcome the noble Lord, Lord Bach, to the Government Front Bench. He is one of the hardest-working Peers in this House. He gave me tremendous support when I had the honour of chairing the Joint Select Committee on the Legal Services Bill. In his safe pair of hands, I look forward to participating with him in the Committee stage of the Employment Bill. Having said all that, this is by no means the neatest Bill we have ever had in this House. Even at Second Reading, I am finding it difficult to discern the unifying principle or principles that we should ideally be discussing. As my noble friend has already pointed out, if there is a unifying theme it is certainly not to reduce the regulatory burden on UK plc. Given the repeated commitment by Ministers to cutting back on the numerous impositions on business, that is pretty disappointing. It would be churlish not to acknowledge that employment levels in the UK are at unusually high levels, but the economic situation is not as we would wish it with the credit squeeze and signs of turbulence in the stock markets. Job creation in the United States is beginning to slump, and if the world’s biggest economy carries on sneezing, we will all catch a cold. There are therefore no legitimate grounds for complacency, yet here we have a Bill that boasts the title of ““Employment Bill”” but does nothing to stimulate job creation. I fear that this may be a missed opportunity. What will the Bill do to help create the much-vaunted ““British jobs for British workers”” about which the Prime Minister was recently enthusing? Not much, as far as I can see. Later on, we will be debating apprenticeships. I humbly suggest that they are rather more important to our national prosperity and well-being than anything contained in the Bill. I turn to what is in the Bill. I feel certain that two rather technical areas of the Bill—employment agencies and the enforcement of the minimum wage—will be subject to some detailed scrutiny in due course, both here and in another place. We should not be doing our job if we did not require Ministers to set out their detailed arguments for the new powers that they want to establish, but that is a matter for later stages. I want to focus on two aspects of the Bill. In my professional life both as a lawyer and as a parliamentarian, I like to think that I have always had a reasonably good working relationship with trade unionists, and even with trade unions themselves. Through my work as president of the All-Party Group on Occupational Safety and Health, I continue to find myself regularly exploring common causes and interests with trade unions. I welcome that. I do not, therefore, approach Clause 17 from a position that is inimical or even remotely hostile to free and independent trade unions—not at all. I must say, however, that I share the unease expressed so eloquently by my noble friend about that provision. I dare say that Ministers will stick gallantly to the line that they are merely responding to the judgment of the European Court of Human Rights in the ASLEF case. Having read that judgment, I was surprised to find that it focused so little on individual human rights. Perhaps that is something that we will debate in greater detail in future. Furthermore, Ministers will no doubt reiterate their aspiration, as the noble Lord, Lord Jones of Birmingham, did earlier, that the legislation will be used only against extremists and against members of parties that all of us regard as being outside the acceptable mainstream. Frankly, I take little or no consolation from that. The aspirations of Ministers are one thing; the actions of some trade unions in the courts can all too often take us in a different direction altogether. I by no means oppose the provision on principle, but whenever Ministers trespass into areas of personal conscience, political loyalties and affiliations, they inevitably play with fire. Once again, detailed scrutiny will prove to be very interesting indeed. When one analyses the constitution of ASLEF, one finds in Rule 3.1(vii) a provision that members must, "““assist in the furtherance of the labour movement generally towards a Socialist society””." We have not heard much about that in recent times, but it reflects the fact that we are entering a dangerous area here in interfering with individual human rights. Of course, I await with great interest the speeches to come from some of our distinguished Queen's Counsel, and I look forward to debating that clause in greater detail. My principal interest in the Bill, however, lies in the earliest part, namely, Clauses 1 to 7, dealing with dispute resolution. I have long been an advocate of alternative dispute resolution, or ADR, in its various forms. This is another area in which my interests and activities outside this place coincide neatly with my role as a legislator. I should declare an interest as a mediator accredited by CEDR—the Centre for Effective Dispute Resolution. I broadly welcome the provisions in the Bill dealing with the future of dispute resolution. I hate to say ““We told you so””, and I know what the Minister said earlier, but there was a roar from a lioness—my noble friend Lady Miller—predicting that the Employment Act 2002 provisions would fail to provide the panacea for all ills that Ministers hoped that they would. It is now clear they have indeed failed to reduce the number of employment disputes that escalate into tribunal cases: tribunal cases have increased by almost a third since the new measures were introduced. I have read carefully the excellent report of Michael Gibbons on this subject, and my noble friend has shared some of the statistics with the House. It is to the credit of Ministers that they kept their word and subjected the statutory system to hard-edged scrutiny now that it has been up and running for a time, just as they said they would. The system they propose to abolish came about in an unusual manner. The Employment Act 2002 established a framework for promoting the resolution of employment disputes in the workplace, but the detailed procedures emerged from a process of substantial pre-consultation, consultation and due consideration during 2003 and 2004. Then, two years after the new regulations came into force, Michael Gibbons began his review. The forward to his report describes Michael Gibbons’s judgment in the following terms: "““This is perhaps a classic case of good policy, but inappropriately inflexible and prescriptive regulation””." This is such an important area and the noble Baroness, Lady Gibson of Market Rasen, was right to highlight it. The Centre for Effective Dispute Resolution estimates that conflict costs UK plc some £33 billion a year—an astronomical figure. The Gibbons report has now given us a far more flexible and less prescriptive way to take things forward than the stultifying hand of statutory regulation. Of course, as the noble Baroness pointed out, the devil will be in detail. I hope that we will see these codes, particularly those referred to in Clause 3(2)—I press the Minister on that. To be more specific, will the codes explicitly refer to ADR in the workplace and encourage its proliferation? I am concerned to ensure not only that successful mediation in the workplace is encouraged, obviating the need for expensive tribunals, but also that mediation in particular should play a far greater role. The keynote for mediation and mediators is preparation. Mediation often works best early in the process, but there are countless instances of it unlocking seemingly intractable deadlocks, even after a process has gone a long way down its unhappy track. As one director of CEDR wrote recently: "““Often it is the dynamic of an independent and impartial intervention that can be most powerful in enabling parties and organisations in disputes to see issues clearly””." Another issue of which I am sure the Minister is only too aware is the inherent difficulty of reconciling a push for ADR with the requirement to uphold the entitlement of employees to enforce their rights under statute and European law. I think of the many products where generous promises of immediate reimbursement are accompanied by the slogan ““Your statutory rights are not affected””. Finally, I am also concerned about the role of ACAS. Is it envisaged that restoring and enhancing its role in the conciliation of workplace disputes will encompass mediation? I am not sure that I know the difference between conciliation and mediation, if there is one. But is it a practical or useful question? We will no doubt discuss that. In any event, an enhanced role for ACAS will have to be backed up by the restoration of resources. I note that the noble Lord, Lord Jones of Birmingham, referred to investment in ACAS and I hope that there will be substantial investment. I look forward to hearing many positive words about mediation in the debates ahead.