Employment Bill [HL]

My Lords, I speak to the amendments in my name and that of the noble Lord, Lord Wedderburn—unfortunately, he cannot be here today because he is ill—and the amendment from the Government. We heard some discussion about Clause 4 in Committee. We were concerned at what appeared to be an increase in the number of cases of a judge sitting alone without lay members. We were concerned that this might indicate a desire to phase out the work of lay members on tribunals, but we accept the assurance given to us by the Minister that the Government recognise the valuable role of lay members and are fully committed to the continuation of the existing tripartite structure. Therefore, we are not pursuing this issue further, but there remains concern about the circumstances in which cases can be determined without a hearing. It is important that vulnerable people understand what is involved and are able to make a decision in their own best interests. They have an entitlement to have their case heard by a tribunal that includes lay members and, if they waive such rights, they must know what they are doing. My noble friend Lord Wedderburn has drawn attention to a recent European Court of Human Rights decision—DH v Czech Republic—which deals precisely with the waiver of a right. The judgment is so important that I shall quote it. It says that, "““under the Court’s case-law, the waiver of a right guaranteed by the Convention””—" the European Convention on Human Rights— "““in so far as such a waiver is permissible—must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent … and without constraint””." That is precisely what our Amendment No. 6 says. We say that, "““‘consent’ means agreement which is— (a) unequivocal, (b) in writing, (c) given without constraint by any person, and (d) given on the basis of informed consent””." Furthermore, Article 6 of the European Convention on Human Rights makes it clear that everyone is entitled to a fair and public hearing and that judgment should be pronounced publicly. That is the purpose of another of our amendments in this group. We also believe that the parties concerned should have a right to know about the qualifications, background and career of the person who will be charged with hearing the case individually so that an informed opinion can be made. Again, that is the gist of one of our amendments in this group. The government amendment agrees with us that consent should be in writing, as we heard from the Minister. Our amendment goes beyond that and, therefore, I prefer it. I have no objection to government Amendment No. 5, but I am rather puzzled by what the latter half means. Proposed new subsection (3AB) says that, "““if he presents a response … in accordance with the … regulations, it is not accepted””." Who does not accept it? Does it mean the claimant? If so, I am quite happy about it. However, I wonder who else might not accept it. Perhaps that could be explained in the Bill. Generally speaking, I commend our amendments to the House. We have attempted to deal with the problems that could face a vulnerable person and we want to make sure that he or she is in a position to make an informed decision. As a former trade union official, I think that it would be simpler if everyone belonged to a union, as that would mean that they were entitled to professional advice and to representation. Unfortunately, that is not the case everywhere, so I believe that we as Members of this House have to take action to try to protect the rights of vulnerable people. For these reasons, I commend our amendments to the Government, who I hope will consider what we have said. We want to add to their amendments, which we do not think go quite far enough.