Enterprise and Regulatory Reform Bill

Baroness Whitaker Excerpts

Wednesday 5th December 2012 Grand Committee

[Lord Young of Norwood Green]

I shall speak also to Amendment 20FA. These amendments are designed to probe the Government’s intentions behind granting the Lord Chancellor additional powers over the composition of certain employment appeal tribunals. Subsections 6 and 7 grant the Lord Chancellor discretion in certain cases to determine as he sees fit the number of employer representatives and worker representatives that may serve on that tribunal. The intention of Amendments 20D and 20FA is to ensure that the Lord Chancellor does not exercise that power in a way that may unfairly disadvantage the worker.

Amendment 20D clarifies that the Lord Chancellor may not use this power to set the number of lay members at zero and therefore prohibit, in certain cases, the judge deciding to sit with lay members, even if he thinks it appropriate. Is it the Government’s intention that the Lord Chancellor should be able to use this power to prevent judges calling lay members to sit on the Employment Appeal Tribunal? Amendment 20F would ensure that the Lord Chancellor cannot exercise this power so that one group is represented by greater numbers than the other. It is about balance on any tribunal. It surely cannot be fair to have a situation where there are lay members sitting on the EAT with experience from the point of view of the employer, but none with experience from the other side.

It may be that the Minister feels that we are being a bit paranoid at this point but, as somebody once said, just because you are paranoid, it does not mean that they are not trying to get you. I would welcome clarification on that and on all the issues I have raised. If the Government will not accept this principle, will the Minister tell the Committee in what circumstances they believe it would be appropriate and fair for a judge to sit on the EAT with an employer-representative lay member and without a worker representative or, indeed, vice versa? I beg to move.

[Baroness Whitaker]

My Lords, I apologise for not being able to take part in the proceedings on this Bill earlier, but as a former employment tribunal member, I would like to reiterate arguments made earlier that the whole point of employment tribunals and the EAT is experience of the workplace from relevant and, in fact, instrumental perspectives of justice. That refers to points of law as well as to facts because the law is interpreted in a context, as the noble Baroness, Lady Brinton, said earlier. It is not a just process—that is, interpreting and applying the law. As well as not being objective, it is not informed by both these perspectives as of right. The risk with the Bill as it stands is that you could have a representative of the employer or the employee but not necessarily both. That is going to make a travesty of the tribunal concept.

[Lord Brooke of Sutton Mandeville]

My Lords, I have listened with great care to everything that was said by the Official Opposition in this context. I do not understand why the Lord Chancellor should feel in any way moved to make use of this clause if he was not going to add appointed members to the proceedings. It states that it is for a particular kind of case, but why would he do it if he had no intention of making use of the opportunity to provide the extra advice?