Employment Bill [HL]

Perhaps this is the fault of the grouping, but I shall refer back to Amendment No. 12, on which the Minister has just spoken. What he said was that when there was no consent in writing—and we must be grateful for such crumbs as we can get—paragraph (a) would not apply. Paragraph (b) would apply when there might be a right to request a hearing but there was deemed consent to having a judge alone. Incidentally, I notice that we have slipped into using the term employment judge; I take it that we mean the chairperson of the tribunal. The Ministry of Justice now insists that we call that person an employment judge, which is not an improvement. When that person notifies an employee that they have a right to request a hearing and nothing happens, the employee is deemed to consent to a jurisdiction which, before 2002, did not exist. There is a great deal of literature to suggest that it should not exist and that the tribunal should determine matters with all three members playing their equal part. Such reassurances as we have had on the Government accepting the equal status of all the members of the tribunal begin to be questionable. I am not questioning their good faith in the matter, simply the logic of the thing. Now we see that the Bill will give the chairperson the right to send a letter to an employee to say that they have the right to request a hearing. Then nothing happens; perhaps the employee lost the letter or was persuaded by his in-laws not to reply to official letters. The Bill must really be amended, if that is what it means. If it means that each party to a procedure has the right to request a hearing but may make no use of that right, the Bill should say so. We cannot just leave it to chance that the regulations will say what my noble friend said that they will say. I am sure that he wants the regulations to say that but the Bill specifies, importantly, where judge-alone sittings of the tribunal will be allowed. Paragraph (b) must at least take a different form if that is what the Government mean. There is widespread concern among practitioners and members of tribunals that there is an intention somewhere, whether in the Ministry of Justice or the Department for Business, Enterprise and Regulatory Reform, or some civil service policy, to have lots more sittings of legally qualified chairmen alone. The insistence that this paragraph should stand as it is in the Bill does nothing to diminish that worry. Surely my noble friend would agree that at least paragraph (b) should be recast in its language.