Employment Rights (Dispute Resolution) Bill [Lords]

House of Commons, 20 March 1998.

MATTERS PROVED ON EVIDENCE BEFORE THE TRIBUNAL

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move, That the clause be read a Second time.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this, it will be convenient to discuss amendment No. 1, in clause 6, page 4, line 39, leave out from beginning to end of line 45.

Andrew Lansley (Conservative, South Cambridgeshire)

We shall have further opportunities to congratulate the hon. Member for Wentworth (Mr. Healey), but I do not want to proceed without thanking him on behalf of all those who support the Bill for the time, trouble and expertise that he has brought to steering it through the House. Lord Archer of Sandwell introduced it in another place, where it underwent constructive discussion and amendment. It has been amended in Committee and we now have the first substantive opportunity to discuss some issues that arise from it. I hope that we can do that crisply and effectively, without undermining its cross-party support. The new clause and the amendment would provide that when employment tribunals have to decide matters of fact or issues presented to them, they will conclude that those issues are proved, or not proved, in the light of the evidence presented to them and, as is customary for such tribunals, on the balance of probability. The central principle is that the balance of probability—not proof beyond reasonable doubt—is a proper test in a dispute between parties. In some circumstances, which I shall touch on briefly, the Bill and other legislation dealing with disputes brought before employment tribunals—as they will be renamed—undermine the principle of neutrality between the parties, imposing obligations on the employment tribunal to regard certain matters as assumed or to be judged not on the balance of probability but as proved unless the contrary is established. That is to undermine what ought to be the basis of justice that many people perceive when they present their disputes dispassionately to be decided in a hearing. That will occur, for example, under the National Minimum Wage Bill, which will bring a substantial new class of actions before tribunals. The Bill requires employment tribunals to make several assumptions, such as that a person making a complaint be regarded as qualified for the national minimum wage, and that a person making a complaint that they have not been paid the national minimum wage has indeed not been paid it. In such circumstances, the Bill requires employment tribunals to assume that the complaint is proved unless the employer is able to establish the contrary. A decision will not be made on the evidence or on the balance of probabilities. I shall not dwell on that, because we have had the opportunity to debate the merits of that provision in other legislation. It would be much to the advantage of the employment tribunal system generally if tribunals were required under this Bill always to examine issues of fact, and make decisions not on the basis of assumptions or bias but on the balance of probabilities and in the light of evidence presented. I am afraid that there have already been several instances where such a principle has been undermined. For example, under both race and sexual discrimination legislation, it is assumed that complaints are effectively proved unless the employer is able to assert otherwise and refute the complaint with evidence to the contrary. The new clause would not undermine cases presented to employment tribunals even in such difficult and often vexatious circumstances, because there is nothing to stop employment tribunals drawing inferences from the evidence, as long as to do so seems, on the evidence, to be justified and the employment tribunal is able to exercise its judgment on the balance of probabilities. If the employment tribunal is to make a general assumption about the conduct of employers or circumstances in which racial or sexual discrimination might occur by inference rather than on specific evidence or context, it is entirely possible for the employment tribunal to continue to apply presumption, but to do so not as a response to legislative injunction that it should, effectively, be biased, but on the basis of evidence and the probabilities that it assesses. By their very nature, tribunals rest on the judgment not only of lawyers but of lay members. Under the Bill and related national minimum wage legislation, the operation of tribunals is moving towards the reflection of the burden of proof directive, which the Community is wishing on us, such that employers will be regarded as engaging in sexual discrimination unless they can prove the contrary. That seems a pretty damaging presumption. Amendment No. 1 relates precisely to that point, but is concerned with a very particular instance. Clause 6(3) refers to circumstances where somebody makes a complaint about the refusal of an employer to deduct union dues that relate to a political fund contribution. Where such a complaint is made, the employer would have to satisfy the tribunal that the reason for not making such a deduction was connected to matters other than the duty to deduct the political contribution. The employer has therefore to prove the contrary of the assumption made in the legislation. Amendment No. 1 would delete such an assumption. The purpose of this group of amendments is to touch on the issues surrounding burden of proof and to try to establish in the Bill, in a more concrete way, that the intention is that parties should bring their disputes before a tribunal on the basis that it will exercise a neutral principle—that of examining a case on the basis of the evidence presented. We must disapply some of the other provisions in the Bill that would result in employers being regarded as guilty even before the evidence has been presented and proved. On that basis, I commend the new clause and the amendments to the House.

John Healey (Labour, Wentworth)

I welcome the debate on new clause 9 and amendment No. 1, but not the reasons that lie behind them. The tabling of 10 new clauses and more than 50 amendments suggests that the purpose of Conservative Members is to impede rather than to improve the Bill. That has less to do with this Bill and more to do with another Bill which, like a will-'o the-wisp, will disappear before their eyes next Friday. What will not disappear is the widespread desire for my Bill—as it stands, without new clause 9 or amendment No. 1—to reach the statute book. The Bill has had a long gestation and very thorough pre-parliamentary consultation—including on the question of burden of proof before tribunals, which is the subject of the new clause and the amendment. Employers want the Bill, unions want the Bill, the Tribunal Service wants the Bill and the 100,000 people who, by the year 2000, are projected to put cases to tribunals, need the Bill. I was impressed by the genuine interest in and the strong level of support for the Bill, including on questions covering burden of proof, that I found in personal discussions in the run up to the Bill with the National Association of Citizens Advice Bureaux, the Trades Union Congress, the Confederation of British Industry and the new president of the Tribunal Service, Mr. John Prophet—who, I am happy to say, hails from Yorkshire and was previously regional chairman of the Yorkshire tribunal service. All understand that the Conservative party supports the Bill. Today will be a test of that support—a test of whether Conservative Members mean what they say or whether, as the early signs suggest, they are more interested in manoeuvres to delay the Bill than in helping employers and individuals to get a better system for settling disputes and differences. New clause 9 has its roots in the National Minimum Wage Bill. It may help hon. Members if I briefly explain the background. There are few hon. Members who are as familiar with that Bill as the hon. Member for South Cambridgeshire (Mr. Lansley). Clause 28 provides, for the purposes of the National Minimum Wage Bill, that an employee is a worker unless the employer can prove otherwise. It also provides that it is presumed that an employee is being paid less than the national minimum wage unless the employer can prove otherwise. In Committee and in the House, during the long hours of debate on that Bill, the Opposition spoke to a number of amendments they had tabled to probe the issue. I fear that the hon. Member for South Cambridgeshire is returning yet again to the subject. It is surely sensible that the burden of proof should rest with employers. After all, it is the employer who has access to all the information and proof necessary to show the tribunal that the person is a worker and how much he is being paid. It is the employer who holds all the necessary information about remuneration, national insurance records and pay-as-you-earn. It is the employer who is responsible for the contract of employment.

Peter Atkinson (Conservative, Hexham)

If it is a question of an employer not deducting union contributions, surely the employee, of all people, would know whether or not his wages included that deduction.

John Healey (Labour, Wentworth)

The hon. Member for Hexham (Mr. Atkinson) and his hon. Friends start from a misapprehension about the nature of the burden of proof. We are not talking about a presumption of guilt or culpability; it is a question of who is best placed to settle a dispute about the facts, one way or the other. Surely it must be right that the party with access to information should have responsibility for proving its validity. Surely that approach makes common sense and is practical and correct. It does not contain the in-built bias to which the hon. Member for South Cambridgeshire referred or any presumption of guilt before proceedings get under way.

Andrew Lansley (Conservative, South Cambridgeshire)

I shall not replay the whole argument, but does not the hon. Gentleman recall that the national minimum wage legislation makes it clear that all the information in the hands of the employer can, by law, under pain of penalty, be taken out of the hands of that employer and given to an enforcement officer? The employer does not have the only access to the records and information.

John Healey (Labour, Wentworth)

That is correct, but the source of information is the employer. In such circumstances, it makes practical sense for the employer to hold the principal burden of proof where facts are disputed. It is not simply the national minimum wage that is at stake here. New clause 9 would affect the way in which tribunals operate in a number of other cases. Contrary to the assertion of the hon. Member for South Cambridgeshire, under current legislation, in most cases tribunals require one of the parties to prove his case to them; they require one of the parties to undertake the burden of proof. Usually, that burden of proof rests with the employee. For example, in unfair dismissal claims, it is for the employee to prove that he is an employee and that he has been unfairly dismissed. However, in certain limited circumstances, that burden rests with the employer. For example, under section 98(1) of the Employment Rights Act 1996, it is for the employer to show the reason for a dismissal and that it falls within one of the reasons under which dismissal is justified. If the employer satisfies those requirements, under section 98(4) of the same Act it is for the tribunal to establish whether the dismissal was fair or unfair. On the ground of reasonableness, the burden of proof in that case is neutral. I have given three examples of the range of burden of proof under current legislation. Essentially, it is a way of directing the tribunal's attention to the most appropriate source of information. I dwelt on that issue and have perhaps given a fuller explanation than was needed in the hope of anticipating and answering questions that Conservative Members may have on the new clause. The burden of proof proposals in the Bill are the same as those contained in the legislation produced by the Conservative party when it was in power and which were put out to wide consultation in 1996. Amendment No. 1 makes changes to clause 6, which deals with cases where a worker alleges that his employer has wrongly deducted a political fund contribution or has wrongly refused to deduct union subscriptions from pay. The purpose of the clause is to transfer the jurisdiction for such hearing cases from a county or sheriff court to the tribunal. That is its only purpose. Since the Trade Union Act 1984, when, as Conservative Members will know only too well, the current law on political funds was established, it has been for employers to prove that any refusal to deduct union subscriptions was unconnected with the action of a person to withdraw from paying the political levy. In other words, it is for the employer to prove that his intentions and motives are in accordance with the law. Amendment No. 1 would remove a long-standing arrangement. It would, in effect, shift the burden of proof on to the worker. It would be difficult, therefore, for the employee to divine his employer's motives or underlying intentions. It would make it difficult, if not impossible, for a worker to prove such a case. That cannot be reasonable. Neither new clause 9 nor amendment No. 1 has my support or the Government's. I hope that Conservative Members will seriously consider not pressing either the new clause or the amendment.

Edward Garnier (Conservative, Harborough)

I do not want to detain the House for very long, but I want to highlight some of my concerns. When I first read the new clause of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), I was minded not to support him, not least because I found it somewhat difficult to cope with the English. If I may say so, I consider the clause to be inelegantly drafted. I hope that my hon. Friend will not take that as a personal criticism. I fully understand the purpose behind the new clause. Having listened to what my hon. Friend had to say in explanation of it, I am more persuaded to accept the arguments that lie behind it. I am not convinced by the argument of the hon. Member for Wentworth (Mr. Healey). I congratulate him, of course, on bringing the Bill before the House. I am not yet convinced that his argument on the burden of proof meets the legitimate concerns expressed by my hon. Friend the Member for South Cambridgeshire. I fully accept that there are different types of case where the burden of proof may rest on the plaintiff, the complainant or the respondent. In some instances, the position is neutral. Under the current system, the law accepts that the burden of proof is not a static concept. I suggest to the hon. Member for Wentworth and to my hon. Friend the Member for South Cambridgeshire that, by and large, in civil cases—let us for present purposes assume that employment tribunals are related to civil and not criminal law—the tribunal is not too fussed about where the burden of proof lies. It is far more interested in the evidence and how that evidence can be applied to the relevant law. With great respect to both the hon. Gentleman and to my hon. Friend, I do not intend to get too hung up on where the burden of proof should lie in any given dispute. I believe that the courts are capable of assessing what is important and what is not and reaching a fair and just conclusion. My hon. Friend the Member for South Cambridgeshire is right to point out through his new clause the creeping movement away from placing the duty on the person making a complaint to satisfy the court that his complaint is made out. I accept that in continental jurisdictions, especially when dealing with criminal law, the defendant—the accused person in a criminal case—must satisfy the court that he is innocent before the court will be prepared to acquit him. That is not our tradition. Our tradition is worth investigating to see why we have it, and it is worth examining before we overturn it wholesale. I fully accept that the hon. Member for Wentworth is not seeking wholesale to overturn the system that we have come to respect on the burden of proof. However, I urge caution on the House. The new clause highlights—and clause 6 amply demonstrates—yet another example of where the burden of proof is moving away from the person making the complaint to the person who is required to answer it. We must remember that the complainer is a volunteer. He is the one who brings the proceedings. He brings the machinery of law to bear. It is the defendant, the respondent or the employer who is there, as it were, involuntarily. It is unjust that an involuntary party to a dispute should have to deal with the burden of proof.

Edward Leigh (Conservative, Gainsborough)

It seems to me that the amendment proposed by my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) is otiose. I wonder whether I can get some free legal advice from my hon. and learned Friend, as he speaks with great knowledge on these matters. The definition in the "Oxford Companion to Law" says: The basic rules are that a party asserting an affirmative must prove it, and that a party relying on a fact peculiarly within his own knowledge must establish it. The onus of proof may shift at various stages in a case. Nothing in the Bill as drafted goes contrary to what is in the "Oxford Companion to Law".

Edward Garnier (Conservative, Harborough)

I know that there is a tradition at the Bar that we help each other out, but I am certainly not giving my hon. Friend any free advice. I am not sure whether the point he makes assists or hinders our discussion. Unless the Bill makes it clear, the usual rules will apply. Clause 6(3) specifically says that it falls on the employer to satisfy the burden of proof. There is an express change in where the burden of proof lies. I fully accept that, under the current law that deals with the recovery of assets of criminals who have already been convicted of drug crime, the burden is on the convicted criminal to demonstrate that what he owns or what he has is not the fruit of any criminal activity. The constitutional difference is that that man has already been convicted. I think that I am right in saying that the convict, having been convicted under the traditional system, whereby he is innocent until proved by the prosecution to be guilty beyond all reasonable doubt, has to demonstrate that his assets are not the fruit of criminal activity. [Interruption.] I am not sure that the mutterings from Ministers are terribly helpful, as they may not be well informed. If the Minister cares to respond on behalf of the Government Whip, I am happy to be corrected. The hon. Member for Wentworth dealt with section 98 of the Employment Rights Act 1996. He is right, but all he demonstrates is that the law is fluid and adjusts itself to meet the circumstances of a given case. The short point that I make to my hon. Friend the Member for South Cambridgeshire, apart from the rather pompous remark about the English of his new clause, is that I congratulate him on highlighting an important issue. The burden of proof is not something which we should lightly move around or dispense with without the most careful thought.

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. and learned Friend is making an extremely important point. Burden of proof is even more important in relation to tribunals and arbitration because there is no appeal on those except on a point of law, whereas if it were a normal case in the courts, recourse to appeal would be readily available.

Edward Garnier (Conservative, Harborough)

That is another point which the House is entitled to bear in mind. I shall not develop it now, as a number of hon. Members wish to speak. I am simply highlighting the issues between the hon. Member for Wentworth and my hon. Friend the Member for South Cambridgeshire. I trust that, before the Bill goes much further, a good deal more thought will be given to that question.

Owen Paterson (Conservative, North Shropshire)

I congratulate the hon. Member for Wentworth (Mr. Healey) on bringing the Bill this far on behalf of Lord Archer of Sandwell. It is a great privilege to introduce a private Member's Bill. I strongly urge the House to support new clause 9. I should declare an interest, as I had been in industry all my life until 1 May. I regret to inform the House that employers are disillusioned about their chances in industrial tribunals, and that leads to the nub of the new clause: there must be no dilution or weakening of the mechanism by which proof is brought to a tribunal. We have had an interesting contest between learned lawyers on the Opposition side. I want to give the House two or three examples of real life. The current system is unsatisfactory. A company that I know well had a redundancy programme. One employee was made redundant, along with a large number of others. He had worked satisfactorily for a long time and there had never been any complaint about him. Simply, the world market had changed, demand had dropped and a substantial number of people sadly had to be made redundant. In the course of the redundancy programme, things changed. The employee was called back in, given a personal interview by the managing director, and offered a job. The managing director kept a written diary of events every day. He wrote down that the interview had taken place, and an offer was made in writing at the same level of remuneration. Amazingly, the company was sued for unfair dismissal and, rather than go through with the tribunal, it settled out of court. That cost the company several thousand pounds. On the strength of that, several others in the programme pulled off the same trick.

John Healey (Labour, Wentworth)

Perhaps the hon. Gentleman could explain how his example relates to the burden of proof. I made it clear that, in unfair dismissal cases, the primary burden of proof is on the employee rather than the employer. Does the hon. Gentleman agree that that runs contrary to the points being made by his hon. Friends?

Owen Paterson (Conservative, North Shropshire)

The point that I am trying to make is that the current system is not entirely satisfactory. The new clause tabled by me and my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) will prevent any further dilution. I shall give a couple more examples in a second. I am concerned that the burden is slipping more and more onto the employer to prove that he is not guilty, as my hon. and learned Friend the Member for Harborough (Mr. Gamier) has said. An employee of a business that I know in the modular building sector stole some wire. He admitted it to the personnel director. He was dismissed on the spot, as per the rules agreed by the work force and the company. Amazingly, he went to a tribunal and, because there were no witnesses when he was interviewed by the personnel director, he won the case. A self-confessed thief received compensation of £6,000, which seems bizarre. It is most disheartening for employers. In another company in the telecommunications industry, an employee had an appalling attendance record. It was a big, well-organised business. It was unionised. The union did not support the plaintiff's case. The man had gone through all the rigmarole of verbal and written warnings and was dismissed because he had not provided a medical certificate as per the rules laid down by the company. The medical certificate turned up seven days after he had been dismissed. He took the company to a tribunal. Great analysis was made of the stamp and the time of posting. Common sense would say that the employee had a weak case, but, again, he won. Common sense suggested that right was not on his side, but the tribunal went against the company. The matter is critical. Proof in such cases depends on all the evidence being presented. Our new clause requires that it be provided. The other massive disadvantage to employers is that a date is fixed for a tribunal. If members of the management cannot attend, another date is arbitrarily fixed on which members of the management have to attend. A senior salesman in the robotics industry was made redundant by a sales director, who then went to the United States on a three-month secondment. The salesman complained, the tribunal laid down a date for a hearing, and the company had to decide whether to bring the sales director back from the United States to attend the tribunal. Tribunals usually start at 10 am, and sometimes run over into the next day, so the sales director might have had to stay in the United Kingdom for two days before flying back to the United States. The case could have taken up a whole week of a senior sales director's time. 1.30 pm The case was dropped, and settled outside the tribunal. For the company, it was not worth the bother of bringing the sales director back from abroad. Cases involving production staff are much worse, because several senior managers may have to attend a tribunal, which might take up more than a day of their time if they are not called until late afternoon on the opening day. The cost of tribunals to continuous process industries can be horrendous, because senior technicians have to be away from work. Managers, especially those in smaller companies, are worried that going to tribunal is not worth the candle. Therefore, they settle out of court, which cannot be right. The alternative is a civil court, but such proceedings take too long. A tribunal can pay a maximum compensation of £25,000, so senior executives are forced to go to law and employ the services of people such as my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Gainsborough (Mr. Leigh). Civil court proceedings are far too costly and take far too much time, so I am in favour of the tribunal system. I strongly support new clause 9, because it is vital to provide maximum evidence if employers are not to become disillusioned with the Tribunal Service.

Anthony Steen (Conservative, Totnes)

When I was asked to take on this Front-Bench job for today—

Graham Allen (Labour, Nottingham North)

A long overdue promotion.

Anthony Steen (Conservative, Totnes)

That is absolutely right. It is an honour and a privilege to have been asked to take on this Front-Bench job. The only snag is that hon. Members have ensured that I have not spoken until 1.31 pm, knowing that the debate would end by 2.30 pm. They had a different agenda: they wanted to give me the honour and privilege of sitting on the Front Bench without having the opportunity to hear me speak. My contribution will be short, but pithy. I want Labour Members to realise that we not only support the Bill and want it to go through the House as effectively and efficiently as possible but were designing such a Bill before the unfortunate events of 1 May. It is no good their thinking that we are opposed to the Bill and are trying to talk it out. Nothing could be further from the truth. Hon. Members will appreciate the quality of the speeches and arguments of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) and my hon. and learned Friend the Member for Harborough (Mr. Gamier). Conservative Members are engaged in high-quality debate, which may be why so many Labour Members are absent: they may feel that the debate is of such high quality that they cannot grasp the arguments. I am glad that the hon. Member for Wentworth (Mr. Healey) is present. He clearly can follow the debate, although he may be struggling a little. The relationship between employer and employee can be difficult and in a civilised society it is important to have an effective system for the hearing and satisfying of grievances. There is, however, a certain irony in our legislating for a quicker, cheaper and less formal way of removing the burden from the system of tribunals—which was itself a way of removing pressure from the courts. We hope that we shall not have to devise a system to remove pressure from voluntary arbitration. That is what the Bill is about, but new clause 9 deals with the burden of proof—an issue which strikes at the root of our legal system. This country can proudly say that a man is presumed innocent until he is proved guilty. That is what the new clause is about: it is about ensuring that the employee is not in a privileged position as against the employer; it is about producing neutrality. I understand that, without the new clause, the employee will be privileged: it will be presumed that he is innocent and the employer is guilty. That is why members of my party are so keen for the new clause to be accepted. Although we support the Bill—and, perhaps, have been the architects of it over many years—there is growing concern, as can be heard, that this problem needs to be put right.

Edward Leigh (Conservative, Gainsborough)

I have some difficulty with my hon. Friend's argument. Traditionally, the whole point of the tribunals that we are discussing has been their informality and accessibility. I must tell my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), with respect, that the wording of his new clause could benignly be described as dense or difficult to understand, and that it could even be described as near gobbledegook. How will it further the informality and accessibility of tribunals?

Anthony Steen (Conservative, Totnes)

It is always a joy to see my hon. Friend in the Chamber—although on this occasion I would have preferred him not to be present. My answer to my hon. Friend is simple. If I may say so, I do not think that he entirely understands the thrust of the Bill, which, as I understand it, is to provide an informal arbitration arrangement. The industrial tribunal—which is being renamed—is just one of the methods that an employee can use in an attempt to claim his rights. Employers have rights as well, however. The Bill provides three ways in which an employee can claim his rights. First, he can use the system that his company may have for dealing with disputes. Many large companies have their own internal processes. That way of seeking redress is very informal. The employee approaches his company, with or without the help of the union, and presents his problem. Secondly, with the agreement of his employer, the employee can ask for arbitration. The whole point of the Bill is to enable employees to take advantage of an informal arrangement simply because the industrial tribunal has become too formal. What was established as an informal procedure has become over-formal. All that my hon. Friend the Member for South Cambridgeshire seeks to do is correct the burden of proof in relation to more formal proceedings. I suggest that my hon. Friend the Member for Gainsborough (Mr. Leigh), whose skill, intelligence and ingenuity are respected in all parts of the House, considers the Bill in the round and does not worry too much about the burden of proof provision in the new clause. I hope that he is satisfied with that answer. I am concerned about the time that will be available to debate the excellent amendments and new clauses that have been skilfully and responsibly formulated by my hon. Friends. It would be discourteous to the House to say more on the new clause. We are debating a splendid Bill. We got it right and the Government have taken it on and, perhaps, made some changes. The new clause would make it even better. If the Government cannot accept the rather skilful, but perhaps not entirely clear, wording of the new clause, perhaps my hon. Friend will withdraw it on the basis of the Government's agreeing to produce better wording.

Ian McCartney (Labour, Makerfield)

I welcome the hon. Member for Totnes (Mr. Steen) to the Dispatch Box. Over the past 11 years, his attempts to get there have ended in abysmal failure and I am pleased that on this occasion, albeit for a short time, he is able to speak from the Opposition Front Bench. I hope he gets an opportunity to do that more often so that I can engage in debates with him—as I have for many hours in Committee. As the hon. Gentleman said, the Bill's proposals were put out for public consultation by the previous Administration, but they failed to act. That has been left to us. We have the full support of the Confederation of British Industry, the Institute of Directors and employee and employer organisations throughout the country. The previous Government put the burden of proof provision in the proposal that went to consultation and was accepted in principle. The hon. Gentleman said that the Conservatives got the Bill right when they were in government. It is therefore nonsense to ask us to amend a clause which, under the previous Government's consultation, was accepted by both sides of industry as an acceptable way to proceed. Hon. Members are under a misapprehension: the Bill is not a threat to employers. There is no presumption of guilt. The hon. Member for Gainsborough (Mr. Leigh) got it right in the best and shortest summing up that I have heard in the House in 11 years: the hon. Member for South Cambridgeshire (Mr. Lansley) was talking gobbledegook. I can put it no better than that. He and I spent some time debating the National Minimum Wage Bill and it is obvious that he is not prepared to forget the fact that, despite his attempts to encourage us to do so, we were not prepared to change the concept of the burden of proof as it relates to that Bill or to this one. It does no more and no less than identify for the purposes of the process who is best responsible for providing factual information on which decisions are based. I ask hon. Members to resist new clause 9 and to leave the Bill as it stands, because, as I have said, it has the support of both sides of industry.

Andrew Lansley (Conservative, South Cambridgeshire)

I think that my hon. Friend the Member for Gainsborough (Mr. Leigh) was criticising the drafting of new clause 9. In that respect, I fear that I am not a lawyer and perhaps did not explain the matter well enough. However, the point, which was made in the debate, is that, as my hon. Friend the Member for Totnes (Mr. Steen) made plain, there will be a natural presumption for the burden of proof to be established in tribunals or courts on the basis of the evidence. Increasingly, and in too many cases, the burden of proof rests on one party and a presumption is required of the tribunals by way of statutory injunction rather than on the basis of the evidence that is presented by the two parties. I am grateful to the hon. Member for Wentworth (Mr. Healey) for the spirit in which he contributed to the debate. On that basis, I beg to ask leave to withdraw the motion.

DETERMINATIONS WITHOUT A HEARING OR FULL HEARING

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 14, in page 2, leave out lines 7 to 10.

Edward Garnier (Conservative, Harborough)

Amendment No. 16 adds a safety mechanism to employment tribunal proceedings, especially where the regulations, as amended, allow for disputes to be resolved or determined without any hearing. I invite the House to consider clause 2, which refers to section 7 of the Employment Tribunals Act 1996 (which authorises the making of employment tribunal procedure regulations)". Clause 2 allows an insertion into that Act in these terms: (3A) Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing (and in private) where the parties have given their written consent (whether or not they have subsequently withdrawn it). I fully understand the need for speed in the delivery of justice in certain circumstances. There are some cases where a good dose of adversarial justice is required to get to the nub of the dispute, whether it is a dispute of law or of fact. We see that in magistrates courts day in, day out, where motoring cases are often dealt with without a full hearing. Indeed, the Magistrates' Courts (Procedure) Bill, which has completed its Committee stage upstairs and is due for Report here, I dare say a little after Easter, is another example of where a much speedier version of events can be arrived at without any detraction from the justice required in any given motoring case. This Bill authorises the determination of proceedings without any hearing. I have a little concern, which amendment No. 16 may alleviate, about the words "and in private" because justice, if it is to be done—I can see my hon. Friend the Member for Gainsborough (Mr. Leigh) groaning at the use of yet another cliché—must be seen to be done. The words "and in private" would cause me even more concern if my amendment were not allowed into subsection (3A). The subsection continues: where the parties have given their written consent (whether or not they have subsequently withdrawn it). The words in parenthesis again underline the need for the amendment. It is one thing to do away with the need for a hearing; it is another to have the proceedings held in private. It is one thing to allow parties to give their written consent to the disposal of the matter without a hearing and in private, but quite another for disadvantaged, possibly not very well educated, people to have their claim decided in private, without the benefit of competent independent advice. The House has, I hope, noticed that, although I speak as a lawyer, I do not require the words "competent and independent legal advice" or "independent legal advice" to be entered into the Bill. What is important is that the person making the claim can obtain competent independent advice. Many of the cases that have come before industrial tribunals and will come before the new employment tribunals have and will be brought by individual employees without the assistance of a trade union. I know that the Minister is a doughty supporter of trade unions and their rights and the way they have assisted employees. There is a place for trade unions and they have played a valuable part in the history of the 20th century and the economic growth of this country. However, not everybody, for reasons good and bad, has the benefit of trade union advice and representation. Such hearings involve both sides of the employment divide. I do not mean to be controversial by using that phrase; perhaps I should talk of both sides of the employment table. Employment in my constituency is predominantly provided by small family companies with annual turnovers well under £1 million—under £100,000 in many cases—not by one huge international company. Small family employers do not necessarily have the time, money or resources to employ a firm of solicitors, whether in Leicester, London or one of the conurbations convenient to my east Midlands constituency. My hon. Friend the Member for North Shropshire (Mr. Paterson), in his remarks on new clause 9, highlighted examples of individual employers who feel that they have been placed over a barrel by the way the system is stacked against them. I seek to protect those employers—and the employees I mentioned earlier—from being railroaded into a result with which they feel no connection. Unless people are able to give informed consent, in this as in many other areas of dispute, it will be difficult for the public to be satisfied with the legislation we have provided and the way in which the tribunal system works. I urge the House to consider carefully the need for independent and competent advice. The genesis of the Bill stems from the work of the previous President of the Board of Trade, now Lord Lang, and the consultation process that accompanied his draft Bill in 1996. That consultation produced some interesting conclusions, and I am grateful to the Library staff for their assistance in my research. The consultation document published in July 1996 explained that the aim of the proposal was to streamline the procedures by allowing the chairman to determine a case on the basis of written evidence and without a hearing. The consent of both parties would be required. The parties could opt for that procedure or the tribunal could of its own volition ask the parties whether they agreed that their case could be determined on written advice alone. Some 67 responses were received in favour of the proposal and only 33 against. Importantly, 101 of those responding failed to express a view. That underscores my point that parties in proceedings need competent independent advice. If people are not prepared, when they are handed a consultation paper, to express a view about whether a dispute should be handled without a proper hearing, that highlights the need for independent advice to be available. Obviously, if advice is available but people do not take it, that is their hard luck. The Bill should ensure that advice is available to those who are invited to attend the hearing.

James Gray (Conservative, North Wiltshire)

Does my hon. and learned Friend agree that—for two reasons—the Minister was being particularly unfair when he attacked the previous Administration for not turning the consultation paper into legislation? The first reason is that the consultation period was last autumn, after the Queen's Speech, so it would not have been possible to introduce legislation based on the consultation paper before the fast approaching general election. The second reason is that the new Government also have not included such legislation in a Queen's Speech. We are debating a private Member's Bill.

Edward Garnier (Conservative, Harborough)

I take those points, but the Minister is incapable of malice and I would not wish to cast more aspersions on him.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Does my hon. and learned Friend agree that legislation passed by the House should be clear and unambiguous? Does he agree that the proposed new subsection (3A)— (whether or not they have subsequently withdrawn it)"— is ambiguous, as it can be read both ways? Does he agree that amendment No. 14 should be passed because most small firms in particular come up against this type of employment legislation only once in a blue moon? Both parties should have access to properly qualified advice.

Edward Garnier (Conservative, Harborough)

I think that I understand my hon. Friend's point. I have tabled my amendment because the wording in brackets is not ambiguous. I want the clause to be amended to provide greater assistance to those who do not have advice but who should have it. I think that I have made that point, and making a good point several times does not improve it.

Andrew Lansley (Conservative, South Cambridgeshire)

I should like briefly to speak to amendment No. 3, which touches on the point that has just been made on clause 2. The wording in brackets— (whether or not they have subsequently withdrawn it)"— would enable the tribunal to proceed on the basis of written submissions without a hearing, even if one party subsequently concluded that that would not be in its interest. I have tabled amendment No. 3 specifically—only—to protect people in those circumstances. I acknowledge that there is a danger that people might vexatiously withdraw consent only to prolong proceedings or to incur additional costs. Nevertheless, one can conceive of circumstances in which parties to proceedings, particularly—as my hon. and learned Friend the Member for Harborough (Mr. Garnier) clearly explained—parties that are at a disadvantage against a well-financed employer who has produced very good evidence. I think that all hon. Members will acknowledge that there are circumstances in which an employee, in particular, may be far better able to expand a case in person—orally, and in cross-examination—than in written proceedings. If amendment No. 14 is not accepted, we should leave that small opportunity for people to withdraw their consent to proceeding on the basis of written evidence alone—to give them their day in court.

John Healey (Labour, Wentworth)

It was remiss of me earlier not to welcome the hon. Member for Totnes (Mr. Steen) to the Opposition Front Bench. I enjoyed his distinctive speech, and welcomed his confirmation of the Conservative party's backing for the Bill. This group of amendments deals with the power provided in clause 2 for tribunals to determine a case, when both parties agree, on the basis of written evidence alone and in private. All three amendments are unacceptable. If they were accepted, they would waste the time of both the tribunal and the parties to the tribunal. Amendment No. 14 would not prevent determinations based on written evidence, but would merely prevent such determinations being made in private. As such determinations are made according to the papers on the file, there is no need for a public hearing. The proper principle outlined by the hon. and learned Member for Harborough (Mr. Garnier) that justice must be seen to be done does not come into play in this respect. Amendment No. 14 would be a waste of the tribunal's time. Amendment No. 3 would enable parties who had given their consent for a written determination in private to withdraw that consent at any stage in the subsequent proceedings. That would unnecessarily waste the time of the tribunal and the other party. 2 pm Amendment No. 16 touches on a much more important point that was eloquently set out by the hon. and learned Member for Harborough. It seeks to insert a requirement for the parties to have had the opportunity to receive advice before agreeing to such a determination. Although it is important for parties to seek advice at each stage in taking a case to a tribunal, particularly when waiving a right, for instance in seeking a compromise agreement, we cannot reasonably require them to do so before deciding to have their case dealt with in a certain way. Parties are not giving up their right to have their case determined by the tribunal; they are merely choosing to have it dealt with in a particular way. In conclusion, the amendments do nothing to achieve the aims of the Bill in streamlining the tribunal system of justice or to make it easier for employees and employers to use it.

Edward Garnier (Conservative, Harborough)

I was hoping that the Minister might be able to help us out of this difficulty, but he appears to be glued to the Front Bench. It seems that I am not getting the support that I had hoped to get for the amendment, despite its merits. I am grateful to the hon. Member for Wentworth (Mr. Healey) for explaining his view on the matter and I fully take the point that the absence of a requirement to take advice, which he clearly does not want in the Bill, does not prevent anyone from doing so. Clearly, anyone who is faced with such a problem ought to seek competent independent advice before taking any decision about his rights. I am sorry that the House is not with me on this matter, and, as I understand the mathematics of the House of Commons, I beg to ask leave to withdraw the amendment.

HEARINGS BY CHAIRMAN AND ONE OTHER MEMBER

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move amendment No. 2, in page 3, line 46, leave out from 'means' to 'consent' in line 48. Amendment No. 2 is very straightforward and I shall not detain the House long in explaining its purpose. In circumstances where a tribunal, which normally consists of a chairman and two lay members, is reduced to two members—the chairman and one lay member—by virtue of the failure to attend on the part of one lay member, for example, the amendment would prevent the proceedings going ahead, save with the consent of both parties. That would include circumstances in which one of the parties was not present at the hearing. Whether or not the parties to a hearing are present, they will have consented or presented evidence to a hearing with legitimate expectations about the character of that hearing. It may be, for example, that an employee is assuming that the tribunal will consist of two lay members, one of whom may have a trade union background. If that trade union person fails to attend, the legitimate expectations of the employee, whether or not he or she is present, will have been frustrated. Under those circumstances, the amendment would provide that the proceedings could not go ahead. Of course, if both parties are there and give their consent, the tribunal could proceed as intended.

Ian McCartney (Labour, Makerfield)

Those who serve on tribunals are not there to represent employer or employee interests. The two lay members are independent and are appointed for their skills. The chairman always has a legal standing. They do not represent employers or trade unions. The tribunal is there to hear the facts and make a determination on them.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful to the Minister for that. I presume that when a hearing is constituted, those attending will be aware of the background of the members appointed to the tribunal and will have legitimate expectations because of that.

Ian McCartney (Labour, Makerfield)

I hope that that is not the case. If people whom we appointed were acting in a partisan way, I would consider it unacceptable conduct. We do not want people to act in a partisan way. We want them act independently and make judgments on the basis of fact.

Andrew Lansley (Conservative, South Cambridgeshire)

I understand the Minister's point, but I hope that he accepts that—as we debated on the National Minimum Wage Bill in relation to a chairman sitting alone—there are legitimate expectations about the character of a tribunal and the background of its members. The legally qualified chairman should sit with two wing members who bring a range of expertise. That is how tribunals are constructed. If one of those members is not there, whatever their background, the expectations on the spread of experience available may be frustrated. If the parties are prepared to consent to that, they should be able to proceed. However, if a party is not there and there were expectations about the structure of the tribunal, it would be wrong for the tribunal to proceed.

Patrick Nicholls (Conservative, Teignbridge)

There is a problem. Initially, it sounds fine to say that if both parties consent, the tribunal can go ahead. However, bearing in mind the costs that may have already been incurred, there could be considerable pressure. Both parties may apparently consent to the tribunal going ahead in a truncated form, but that could be a difficult judgment, perhaps made with some misgiving, mindful of the costs that would otherwise be incurred.

Andrew Lansley (Conservative, South Cambridgeshire)

I understand my hon. Friend's point. If the parties are there, they have to balance those considerations. They may feel under pressure of costs. If they are not there—this is where the amendment would be particularly relevant—they are not in a position to weigh up the consequences of the failure of one member of the tribunal to attend. Tribunals may take a long time. Considerable resources may be at stake. The establishment of the tribunal and its balance between the legally qualified chairman and the lay members can be significant in such circumstances. I commend the amendment.

Anthony Steen (Conservative, Totnes)

I hope that the Labour party is not programmed to reject all the amendments and new clauses tabled by the Conservatives. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) has made a serious point. I hope that it can be squeezed in without too much fuss. I hope that it will be seriously considered and not just rejected out of hand.

John Healey (Labour, Wentworth)

The purpose of clause 4 is to deal with a particular circumstance that may arise from time to time. Tribunal proceedings may currently be heard in the absence of one lay member—for example, if they are ill—but only if all the parties agree. All those parties must agree, regardless of whether they are present. If a tribunal is scheduled to proceed and one of the parties has said that they do not wish to be present, they must still be consulted on whether they are content for the proceedings to go ahead if one of the lay members is unable to attend because they are ill or have had a crash on the way. It is not always possible to contact the absent party in such circumstances. As a result, hearings have to be postponed, rescheduled and listed for another day. The amendment would negate the entire change proposed in clause 4. Indeed, it would have been clearer if the amendment had said, "Delete clause 4", because that is its effect. Clause 4 was a response to a request by tribunal chairmen in England, Wales and Scotland during the 1994 round of consultation. It was then overwhelmingly supported by respondents to consultation on the draft Bill. Clause 4 will lead to a swifter resolution in a few cases, and to that extent it is worth having. I urge Conservative Members to withdraw amendment No. 2.

Andrew Lansley (Conservative, South Cambridgeshire)

I have neither support from the Government Front Bench nor from the hon. Member for Wentworth (Mr. Healey), the Bill's promoter. On that basis, I beg to ask leave to withdraw the amendment.

LEGAL OFFICES

Edward Leigh (Conservative, Gainsborough)

I beg to move amendment No. 18, in page 4, line 19, at end insert— '(6D) In this section a "legal officer" means— (a) as respects England and Wales, a barrister of not less than two years call (whether in practice as such or employed to give legal advice), a solicitor admitted for not less than two years who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990) (b) as respects Scotland, an advocate of more than two years standing (whether in practice as such or employed to give legal advice), or a solicitor of more than two years standing who holds a practising certificate.'.

Edward Leigh (Conservative, Gainsborough)

I have been asked to speak to this group of amendments. They are very clear and I hope that the hon. Member for Wentworth (Mr. Healey) will think that they are useful additions to the Bill. All that they seek to do is ensure that the legal officer is someone of appropriate standing and experience—because his duties will be very onerous. The Bill specifies that a legal officer can be appointed to relieve chairmen of some of their duties. The introduction of the concept of a legal officer has long been envisaged by those who wanted to promote the Bill—indeed, by the previous Government, whose consultation paper in July 1996 said: The aim of the proposals is to relieve tribunal chairmen, particularly in the large offices, of some of the interlocutory duties they currently are required to fulfil by appointing 'legal officers'. The duties that will have to be undertaken by the legal officer are very wide ranging. They could include granting postponements, making witness orders and carrying out pre-hearing reviews. As a practising barrister, I can say that such pre-hearing reviews are becoming increasingly important. It will therefore be immediately apparent to the House that the duties of legal officers will be very heavy.

Edward Garnier (Conservative, Harborough)

Is it of help to my hon. Friend to put to him the similarity of the work that it is proposed will be done by legal officers with that already done by district judges and Queen's Bench and Chancery Division masters in litigation with which he and I will be very familiar?

Edward Leigh (Conservative, Gainsborough)

My hon. and learned Friend makes a very interesting point. Only this year, I was engaged not in civil proceedings but in criminal proceedings, where pre-trial reviews were very onerous and difficult as they appertained to a long fraud trial. Such matters really have to be considered by a very experienced judge. That shows some of the problems. Although the proposals concern interlocutory proceedings, pre-hearing reviews could deal with quite complex matters. Therefore, the duties that we are placing on a legal officer are very important. Notwithstanding that, consultation took place. Of the respondents, 49 were in favour of appointing legal officers, 19 were against and 133 expressed no view. Like my hon. and learned Friend the Member for Harborough (Mr. Garnier), who was at the time referring to a previous group of amendments, I am rather worried that 133 expressed no view. One assumes that those who take an interest in these matters have come down in favour of the appointment of legal officers. The trouble is: are we absolutely convinced that legal officers will have the necessary experience? Will they be of appropriate standing? Addressing such questions is the purpose of the amendments.

Patrick Nicholls (Conservative, Teignbridge)

If I have understood the purpose correctly, the legal officer will not simply be appointed by qualification, because of the point about time spent. Also incorporated is the possibility of authorised advocates and authorised litigators, which is perhaps a concept with which many people outside the House will not be immediately familiar.

Edward Leigh (Conservative, Gainsborough)

I am very glad that my hon. Friend has made that point. That is why the amendments are so appropriate. Amendment No. 18 says that a legal officer in England and Wales should be a barrister of not less than two years call (whether in practice as such or employed to give legal advice)", or a solicitor admitted for not less than two years who holds a practising certificate". It seems to me that this is an entirely proper amendment. If a barrister has two years' call, we might assume that he has the necessary experience to undertake this sort of work. The House may not be familiar with the way in which barristers are trained. One can become a barrister before having any practical experience of court work, providing written advice or anything else. Indeed, there are some barristers in the House—distinguished Members of Parliament—who have never pleaded in the courts and have no direct practical experience of legal work. Therefore, if we are to appoint legal officers to carry out these onerous duties, it is entirely sensible to stipulate that they have the basic experience of two years' call. I hope that the hon. Member for Wentworth, when he stops walking around the Chamber seeking advice, will accept what I have said. I commend the amendments to the House.

Ian McCartney (Labour, Makerfield)

The amendment raises an important point and I want to respond in a positive way. It is right that the legal officers are fully able to carry out the important responsibilities that will be assigned to them. My officials are considering this carefully and will consult those with an interest, most important, the presidents of the industrial tribunals. We gave an undertaking in the other place to do that, and I reaffirm that now. The concept of legal officers is new, so it is important that it is tested to see whether it is feasible. In order to do that, a pilot scheme is being prepared. It would entirely defeat the object of that scheme if matters such as qualifications, tasks, and so on were set out in primary legislation at this stage. It is also unnecessary, because matters relating to tribunals are set out in the regulations dealing with their constitution. Legal officers will not be able to carry out pre-hearing reviews or determine proceedings, except where a case has been withdrawn or settled. I hope that I have reassured the House that we intend to deal with these matters in a competent, effective way—through consultation, by piloting and, having learnt from the piloting, by bringing in appropriate schemes. By "appropriate", I mean subject to consultation. The whole purpose of the Bill is to ensure that the partners in the case consent to the process. It is important to handle the matter carefully. As there was a good deal of support for the principle of the Bill during consultation, and as it is our intention to move forward in a careful and measured way, I hope that the hon. Member for Gainsborough (Mr. Leigh) will withdraw the amendment. His points were genuine and effective, but we have already considered them and our proposals should therefore satisfy him.

Andrew Lansley (Conservative, South Cambridgeshire)

I understand that there are some lawyers with employment expertise who, because they do not require rights of audience in court, are not authorised advocates or litigators. Is it intended to include that sort of employment law specialist?

Ian McCartney (Labour, Makerfield)

Given the time, I will write to the hon. Gentleman fully setting out our intentions.

Edward Leigh (Conservative, Gainsborough)

I am grateful for what the Minister has said. He responded helpfully and positively to the amendments and the purport of them. I am delighted that he intends to undertake further consultation and that it is not envisaged that the legal officers to whom I referred will carry out pre-hearing reviews. In those circumstances, I beg to ask leave to withdraw the amendment.

Andrew Lansley (Conservative, South Cambridgeshire)

I will not take up a great deal of time, but, having moved a new clause and tabled a number of amendments for Report stage, I want to take the opportunity to extend a general welcome to the principle of the Bill. My hon. Friend the Member for Totnes (Mr. Steen), who spoke eloquently to the new clause—rather more eloquently than I did earlier—gave the Bill a general welcome from Conservative Members. The Bill was very much the product of lengthy consultation and it would be remiss of the Minister to chide the previous Government for failing to bring in the Bill. We proceeded with the Bill through means of exhaustive consultation—rightly so, given that it relates to the administration of justice and, therefore, has to command the utmost confidence of the parties involved. There is also a slight sense that we wish that we had not arrived at this point. Tribunals were initially established to offer a speedy, effective and cheaper route of justice than that provided by the courts. Yet we have alternative disputes resolutions and mechanisms because parties to the dispute can perceive the tribunals procedure as being relatively expensive. Notwithstanding the fact that delays in tribunals are less now than when the Bill was conceived, a considerable volume of business passes through them.

Anthony Steen (Conservative, Totnes)

I hope that my hon. Friend will comment on another point. The Government are creating increasing amounts of legislation that will result in industrial tribunals being even more blocked. Also, there is more legislation coming from Europe, which will create another blockage. Does my hon. Friend agree that, for those reasons, the Bill is necessary?

Andrew Lansley (Conservative, South Cambridgeshire)

My hon. Friend knows well that the Bill was contemplated by the previous Government as a way of dealing with the considerable and growing volume of business passing through industrial tribunals at that time. It was not contemplated to deal with the additional cases that will be brought before employment tribunals as a result of the national minimum wage legislation. However, it would not be wrong to expect that that legislation will bring additional business before the tribunals, so everything that can be done to ease progress should be done. My hon. Friend rightly said that the Bill should also try to buttress internal appeals procedures wherever possible within companies. Some amendments have been tabled on that subject, but time has not permitted us to debate them in detail. Parties should seek, wherever possible, to deal with their disputes through internal company procedures. Where that is not possible, it must be in the interests of the companies and the participants to deal with disputes through compromise agreements. We have a useful measure that allows more compromise agreements to be entered into, using not just legal advice, but wider advice and arbitration procedures. The Government have largely followed the path set down in previous consultation and in the document published in July 1996 by Lord Lang, the then Secretary of State for Trade and Industry. One omission is that the Government have chosen not to use private arbitration schemes in addition to those arranged through ACAS, which is a pity. I acknowledge that, if they wish, the parties to a dispute can go to arbitration. However, the parties entering into private arbitration cannot, as I understand it—I stand to be corrected by the hon. Member for Wentworth (Mr. Healey) and the Minister, who understand such matters better than I do—do so in ways that take advantage of powers contained in the legislation. One such power involves setting aside an appeal against that arbitration. The legislation circumscribes the circumstances in which parties are likely to use arbitration. I think that both parties will probably find it risky to use arbitration, except through the procedures devised by ACAS. That is not to say that ACAS itself is the arbitrator or that ACAS will not necessarily be using some of those people who are best qualified to undertake such arbitrations. They may not necessarily be legally qualified, but they could come from a range of people with appropriate experience—from the workplace, trade unions, personnel, management or wherever. None the less, they will do so in the context of a scheme established by ACAS rather than one that is established by bodies other than ACAS. It is in the nature of the private route for resolution procedures that bodies other than ACAS may be able to devise cheaper, less bureaucratic, more accessible and altogether more user-friendly routes to arbitration. It would have been within the spirit of the way in which the measure has been brought about—essentially on an all-party basis—if the Government had proceeded on the basis of the consultation that took place before the election, rather than resting on the bureaucratic body that they know best. That is not to decry or diminish the role of ACAS, which I accept has an established role in collective disputes, though less so in individual disputes. It may well be that, by using pilot procedures and permissive legislation, it would have been possible for private schemes to be established, which would have worked effectively and might have built up rising confidence on the part of the parties that, unfortunately, enter into disputes. Notwithstanding that criticism, I take the opportunity on Third Reading to welcome the Bill and to offer congratulations to the hon. Member for Wentworth on steering it through the House. He has done so with a wealth of expertise and experience, which is practical, pragmatic and, it is to be hoped, proved in the event.

James Gray (Conservative, North Wiltshire)

I add my voice to those of my right hon. and hon. Friends in offering congratulations to the hon. Member for Wentworth (Mr. Healey) on having the sound good sense to introduce the Bill and pilot it through its various stages in the House. I congratulate the hon. Gentleman also on having the sound good sense to take up a proposal that was first thought up by the Conservative Administration, which ended on 1 May 1997. It was the brainchild of the then President of the Board of Trade, Ian Lang. I am sure that he deeply regrets that, because the consultation procedure took place in the autumn of last year, he was not able to introduce a Bill to enact the proposals on which he had consulted. It was slightly ungracious of the Minister to upbraid the Conservative party for not having introduced the proposals set out in the Bill into law; the Labour party has equally failed to do so. There has been a Queen's speech following the election of the Labour party into government, yet it failed to include the proposals in that programme. As I have said, I congratulate the hon. Member for Wentworth. I hope that he will be successful in introducing the Bill.

James Paice (Conservative, South East Cambridgeshire)

My hon. Friend will know that the previous President of the Board of Trade produced a general consultation paper and a draft Bill. Does he agree that it is a great tribute to Ian Lang that he introduced a draft Bill, because it gave an opportunity for everybody involved to consider the rights and wrongs of the proposals and to get future legislation right? The Bill is slightly different from the draft Bill. That draft Bill gives the lie to the Government's suggestion that, by introducing draft Bills, they are developing a new policy. We have already seen draft Bills.

James Gray (Conservative, North Wiltshire)

My hon. Friend makes a good point. The Conservative party conceived the notion of introducing draft Bills. It is slightly irritating or upsetting to hear the new Government crowing about how clever and democratic they are being in introducing such Bills. I welcome the fact that the previous President of the Board of Trade introduced a draft Bill. The Opposition broadly support the main thrust of the Bill. However, the hon. Member for Wentworth and the Minister will have heard valid and important concerns expressed by us during our debates. We naturally massively support the notion of industrial tribunals. I understand that there have been 1 million hearings and 30,000 cases so far. They have been a significant and accessible route for settling industrial disputes. We are wholly supportive of industrial tribunals and the main thrust of the Bill. We are concerned that they became clogged up towards the end of the previous Parliament because of the volume of cases that were brought before them. Therefore, any means that can be found to make them more efficient; that allow more cases to be heard; and allow the rights and worries of employees and employers to be heard is important. I am glad that my right hon. and hon. Friends support the main thrust of the Bill. There are two or three areas of particular concern, which we have raised during the debate. They concern—