Employment Tribunals Act 1996 (Tribunal Composition) Order 2009

My Lords, I feel that this order, which will undoubtedly go through, should not proceed without some mention of its extreme importance in the development of our employment law. When the industrial tribunals, as they were then called, were established in 1964, they were set up with a legally qualified chairman and two wing persons, one from a panel of employers and one from a panel of employees. The reason for that was not to create what the Conservative Opposition have yet again this evening called "rigidity" in their structure—I know from my experience in this House that they have been saying that since 1971. It was in order that the legally qualified chairman should have in his or her tribunal something that is not available in ordinary courts, namely two wing persons who brought to the facts experience from both sides of industry, in order to illuminate the court’s understanding of questions of law that the legally qualified chair, now called an employment judge to satisfy the Ministry of Justice, would deal with in his handling of the case. The Donovan Royal Commission in 1968 advocated, in chapter 10 of its report, the tripartite structure for what it foresaw to be a potential source of new labour courts, dealing with employment issues between employer and employee, and the Ministry of Labour, in its wise evidence to that commission, suggested that this was a desirable development in the structure of our law and that it should be promoted. Ever since then, as I understand it, it has been a bipartisan policy, not a party issue. that the tripartite nature of the employment tribunals, as they are now called, should be sustained and promoted. The reason I am speaking is that there is abroad, among practitioners in the tribunals and the employment appeal tribunals, an apprehension and concern that are shared by a wide number of lay members on the employment tribunals—the wing persons, as I call them—that we are groping in the dark more and more towards a system that would merely have an employment judge with two wing persons who were really added extras and not very important. It is true that my noble friend on the Front Bench has said today, as the Government said in response to their consultation, that the wing persons in employment tribunals are valuable and much appreciated. I am glad that that has been repeated, but there is an anxiety among lay members of tribunals that their functions are being gradually diminished, and this order takes a further step towards the jurisdictions that can be dealt with by an employment judge alone. The rationale for doing so is not easy to see. The first substantive type of case that is selected is the question of holiday pay, to put it in layman’s language. Paragraph 7.4 of the Explanatory Memorandum from the Department for Business, Enterprise and Regulatory Reform says: ""The Government believes that some tribunal cases, which revolve around the determination of facts in cases of monetary disputes, could be dealt with more quickly and simply. Holiday Pay claims often involve straightforward monetary issues"." There may be a case for having wider jurisdictions for a judge alone sitting on the tribunal, but it certainly is not substantiated by choosing cases that are primarily questions of fact. It is the questions of fact that the wing persons, the non-legal judges, are equally, if not more, able to deal with than what is now called the employment judge. Indeed, the Donovan commission’s 1968 report said four times that the point about the tripartite judges, the legally qualified chairman and the two wing persons, one from an employers’ panel and one from an employees’ panel, was that the judges were, and should be, on a footing of equality. I thought that that notion had been shared by different Administrations, even when there was a great deal of difference about employment law, from 1971 until today. My difficulty with the reason for moving in this direction and expanding the "judge alone" jurisdictions is to be found in paragraph 7.4 of the department’s memorandum, which I quoted just now. Once again, the question of a better resolution of disputes in the employment tribunals should not be justified on the basis of how quickly they deal with disputes, or indeed of matters of cost, but of whether they deal with employment issues fairly and whether the fairness of the procedure is improved by any changes that take place in the structure. I hesitate to mention it, but if the Government want the structure of the employment tribunals to pass the test of Article 6 of the European Convention on Human Rights, they must address themselves to the fairness of the tribunals and the fairness of the due process that their structure puts before the litigant. It cannot be done simply because a tribunal might get rid of a case more quickly than would otherwise be so. In effect, what I quoted from the memorandum is rather back-to-front. The determination of fact in cases like holiday pay may or may not be just as difficult as in any other type of case. If the safeguard, as the Government say in their response to the consultation, is in fact that the parties can demand a full tribunal, the idea that you are going to get a quicker process flies out of the window. Yesterday evening I was in the company of hundreds of members of the Industrial Law Society, which comprises a large quantity of practitioners in the employment tribunals. If you told them that you were going to have a case heard by a judge alone unless they objected and found some reasons, some safeguard, why it should be heard by the usual tripartite tribunals, many of them would have a great deal to say on behalf of their client, whether claimant or respondent, which might well prolong the argument on the question of whether or not the judge alone should be the person to hear the claim. Even the Government’s own justification in the paragraph of the memorandum that I have quoted is then under suspicion—will it really be quicker to have an argument about whether the proceedings should be "judge alone" or whether there should be the usual tripartite full tribunal hearing? As I understand it, that is the safeguard that the Government put forward. The apprehension among practitioners and lay members of tribunals is that the lay members, although they are given many thanks for their past services, are about to be pensioned off as though they were some optional extra. They are not. The tripartite character of the tribunals is the reason why they have the confidence of various areas of industry and the public service, among employers and employees, from trade unions to employers’ associations. It is a tribunal that has experience from the wing persons of both sides of industry and what is now called an employment judge—a legally qualified chairman, as we always used to call them—to try to ensure that they do not go off the rails on legal issues. Of course, there is always an appeal to the Employment Appeals Tribunal, but even there the Association of Lay Members of the Employment Appeals Tribunals has also raised with me—I know that my noble friend Lady Turner has had the same quantity of e-mails and approaches—its worry about the future of the tripartite nature of the tribunals. My noble friend clearly explained where we are going with this order. I wish to ask her two questions. First, do her advisers lead her to foresee further orders in the near future to expand the area and jurisdiction of judge-alone hearings without wing persons? Secondly, will there be consultation with the associations of lay members, of whom there is an association of employment tribunal wing persons and of employment appeals tribunal wing persons, so that in any further adventures into this land of judge-alone hearings—those would not have been recognised when the industrial tribunals, as they were then, were set up—does not come about without it being very clearly mapped out as territory which the Government foresee as being necessary to the future of employment disputes? I have no status, nor would it be proper, to do anything to prevent this order going through. It is not the function of this House to do so with secondary legislation. However, there is fear and apprehension abroad that the lay members of tribunals may be gradually on their way, if not out, at any rate further out than they were. I ask my noble friend to take that fact back to her advisers, because it is a fact, and to recognise that the gradual expansion of the jurisdiction of judge-alone hearings will not cause that fear and apprehension to go away. I hope that your Lordships do not object to my taking the opportunity to place these points on record. There is very little available to read about this situation, which is considered very serious among tribunal members. I am sure that my noble friend will also agree that she has been approached by a very wide circle of people on this matter.