Government: Draft Legislative Programme

My Lords, I congratulate the Government on their innovative publication of a draft legislative programme. I wish to use my few minutes discussing the Employment Simplification Bill, under three headings. First, the proposals to strengthen the enforcement mechanisms of the national minimum wage are very welcome. Secondly, we should welcome the Bill’s provisions on trades union membership to make our law compatible with the European Convention on Human Rights after the recent ASLEF case. There may, however, be other aspects of the convention which the Government should look at when we reach the Bill. Thirdly, the Bill proposes to repeal dispute procedures at work, which were introduced as recently as 2002 in the Employment Act. This is a much more problematical area, where we have to grapple with the new target of ““flexicurity””, to which I shall return. Some noble Lords will remember the arduous Grand Committee stage of the 2002 Bill. The Government’s plan was to cut tribunal cases by 40,000. The legislation failed to do that, largely because tribunal cases increase in number because of the extra jurisdictions which employment laws regularly call on them to enforce, from sex discrimination to unfair dismissal. There are three documents on the reading list for the Bill: the Gibbons report, the DTI consultation document and the 22nd report of your Lordships’ Sub-Committee G of the EUC. Although it is examination time of year, I shall not reveal the classifications that I have given to the three documents. We still do not know what steps will be proposed regarding access to the tribunals. Employers protest that tribunal justice costs too much. There is nothing new in that, although it is a very important point. They have protested every year since 1972—ever since I have been studying the subject, in my 40 years of research. But the increase in tribunal hearings is largely a matter of an increase of jurisdictions. Even so, British employment standards do not come up to what are seen as fundamental standards in several other comparable countries. However, let us get one point straight: everyone agrees that resolution of disputes at work is best effected by agreement between the employer and the worker internall, at the workplace. Fortunately, we have the great work of ACAS to support such agreement. I hope that ACAS’s resources will be maintained sufficiently for it to go on and do even more of its great work. Nevertheless, where such agreement fails, there must be an external enforcement agency of employment rights. Those are the tribunals. If limits on access to the tribunals impose such strict provisions, we face the risk of two defects: first, damage to good industrial relations; and, secondly, damage to the basic principle of access to justice. To make access to justice effective, workers need assistance from their trades union representatives or their other chosen advisers. In 40 years of study of comparative labour law and industrial relations, I have learnt one simple lesson: you cannot just import a legal mechanism from a foreign jurisdiction which has a different social history and a different set of legal institutions. What you can do is ask new questions after studying the foreign systems. The Gibbons report makes this elementary error twice—I will give the Minister the page numbers if he wants them—snatching at institutions in the United States and New Zealand as though some surgery could allow for implantation into the quite different setting of the British system. While we can find those questions in foreign jurisdictions, we have to look at labour law in the proper sense, which, in my humble submission, none of the evidence so far has done in the reports. It includes: crude legislation; refined regulations; and collective bargaining between employer and trade unions, a feature virtually ignored by most of these documents. The European Commission’s new Green Paper, Modernising Labour Law, is a very important document. It was not properly addressed in the report of Sub-Committee G. The evidence from two eminent British professors from Oxford and Cambridge in their published papers, and from Professor Sciarra in Italy and 36 Italian lawyers who, for once—and the only time in my life—agreed on a joint paper, is virtually ignored. The 22nd report says that we must aim at ““flexicurity””. That means a flexible labour market and security in employment at reasonably fair standards. If we want British productivity to rise from its depressingly low level, we must provide quick access to impartial machinery for redress for workers who have a grievance for which no solution can be found in the workplace by agreement. As Professor Sciarra shows, a final point is vital. This is not snatching something from another system; we were the original home of collective bargaining. Collective bargaining between employers and unions is the mortar that holds together the bricks and edifice of an industrial relations system that will work on the ground. We shall return to these issues when we see the Bill, and I greatly look forward to those debates.