moved Amendment No. 6:
6: Clause 24, page 21, line 1, leave out ““of the First-tier Tribunal or the Upper Tribunal”” and insert ““appointed under section 40(1)””
The noble Baroness said: My Lords, in moving Amendment No. 6, I shall also speak to Amendments Nos. 7 to 10 and 15. In accepting the amendment tabled on Report by the noble Lord, Lord Goodlad, which restored to the Bill a clause governing mediation, I undertook to table consequential amendments at Third Reading to ensure that what is now Clause 24 fits properly back in. Amendment No. 6 tidies up the terminology to refer to all tribunal staff appointed under Clause 40(1), so that they can act as mediators wherever they work in the tribunals service.
Amendment No. 7 deletes Clause 24(6) to (9) to enable some restructuring of the role of ACAS and the payment of fees to mediators. Subsection (6), which requires consultation with ACAS before a practice direction can be made in relation to mediation, has been removed from Clause 24 because ACAS needs to be consulted only in employment cases.
Amendment No. 15 restores to Schedule 8 the provisions extending the mediation principles to the employment tribunals, which were originally included in Schedule 8 to the draft Bill. There are, however, some important differences. In subsection (4), the reference to tribunal staff has been broadened to include all tribunal staff. References to fees have been deleted—I shall explain why shortly—and the definition of member has been changed to make it clear that mediation may be carried out by members other than those assigned to the tribunal to hear the particular matter. I should explain that one provision that appears in the new Clause 24 has been omitted from the parallel provisions in Schedule 8. This is the stipulation that tribunal procedure rules or practice directions must be made with regard to the principles that mediation is to take place only by agreement between the parties in dispute, and that the failure of mediation is not to affect the outcome of the proceedings. This is a very deliberate distinction. It is accepted that the employment tribunals should remain outside the new tribunals structure, and that they will retain their own rules and policy priorities in some areas. This is due to their different character and their party versus party nature rather than their administrative nature.
The Department of Trade and Industry is currently undertaking a review of dispute resolution, which is due to report shortly. Against that background, we felt that it would be wrong to put anything in legislation now that might pre-empt the outcome of the review, or to fetter the discretion of the Secretary of State for Trade and Industry in this area. However, I emphasise that the omission of these provisions from Schedule 8 should not be taken to imply that the Government intend to force mediation on parties who are not willing to agree to it; it does not. Anything that the Government might eventually decide to do that changes the current position on mediation in employment tribunals would be subject to parliamentary scrutiny.
We decided to omit from Schedule 8 the provision that the failure of mediation is not to affect the outcome of the proceedings, because it would proscribe the use of an award uplift or reduction. The Department of Trade and Industry regards this as a legitimate tool to encourage settlement, and this is reflected in current arrangements under Section 31 of the Employment Act 2002. Under that provision, an employment tribunal may enhance or reduce an award dependent on the parties’ efforts on completion of the three-stage procedure. Again, we do not want to upset existing arrangements or to pre-empt the results of the review. Noble Lords may have seen an earlier version of the amendment to Schedule 8 in which the distinction between it and Clause 24 was not drawn. I apologise for any confusion that that may have caused.
Amendments Nos. 8 and 10 restructure the provisions on fees. Amendment No. 8 amends Clause 42 to enable the Lord Chancellor to prescribe by order the fees payable in respect of mediation conducted by any tribunal staff. This replaces the two references to fees in Clause 24 and Schedule 8. Amendment No. 10, to Clause 49, ensures that fees payable for mediation are subject to the negative procedure.
On orders setting fees for mediation by staff, the consultation draft of the Bill provided only that the orders be laid before Parliament. The Government believe that the negative procedure provides an appropriate level of control for orders setting the level of such fees, as the House has already accepted the principle that fees may be, but do not have to be, charged.
Finally, Amendment No. 9 was prompted by the mediation amendments and adds the words ““a resolution of”” after ““approved by”” to ensure clarity of the desired procedure before the House. I beg to move.
Tribunals, Courts and Enforcement Bill [HL]
Proceeding contribution from
Baroness Ashton of Upholland
(Labour)
in the House of Lords on Tuesday, 20 February 2007.
It occurred during Debate on bills on Tribunals, Courts and Enforcement Bill [HL].
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2006-07Chamber / Committee
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