Enterprise and Regulatory Reform Bill

Debate between Baroness Donaghy and Lord Marland

Wednesday 5th December 2012 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Marland)]

My Lords, I thank the noble Baroness, Lady Donaghy, for the amendment. It is, quite rightly, an interesting area to probe. I also compliment her on her work as chair of ACAS and the work of its board.

In summary, this is a nice problem to have. We all agree that ACAS is a terrific institution. It probably sounds rare for this Government to say that they thought it was a very good institution, but we believe strongly in it as an important place to resolve difficulties. That is why we intend to put much more in the way of resources into it, and it will become a fundamental block for early resolution of a lot of disputes. We know it acts fairly and properly, it has a good track record, and we are keen to support it.

I know that many noble Lords have read our recently published impact assessment on resolving workplace disputes, which helps to answer a number of issues that have been raised. We will produce in the new year a further impact assessment on how this process will work and whether the funding should be upfront, which the noble Baroness asked for. We are working to determine the extent of the funding and how best it is to be provided. I hope that by the time we get to the Report stage in the Chamber, quite a lot of the questions will have been answered.

It is important that we get it right and that we listen to the words of the chairman, who said, in front of the House of Commons Committee, that he was confident that ACAS would be adequately funded for its new task. Do not, therefore, take it from us; take it from him that he is confident he will get the right funding. We are working closely with him and the organisation to make sure that we do that. I totally accept and agree, as do the Government, that it is critical that ACAS is properly funded, and we will be able, in the normal course of its annual report, to see how that funding is operating. Noble Lords will be able to judge for themselves annually how that is improving and, through the normal avenues, determine that the progress we hope for on all sides of the House is being made as satisfactorily as possible.

I thank the noble Baroness for this probing amendment. It gives me an opportunity to lay out clearly how we are going to proceed. On that basis, I hope that she will withdraw the amendment and look to see how this develops in the next month or so.

[Baroness Donaghy]

I thank noble Lords who took part in the debate, and particularly the Minister for his response. As he said, it is a good problem to have, and I am glad that he has again publicly acknowledged the work of ACAS and the need to produce substantial funding. I asked four or five questions, and I understand that he is not in a position to answer them today. I note what he said about producing the impact assessment on the process, which is still being worked out. It may well be that by Report stage we will all be gloriously happy. Would it be helpful if I dropped him a note to remind him of those questions, or is he satisfied that they will appear in Hansard?

[Lord Marland]

Naturally, I have noted the questions and I will save the noble Baroness time because I have excellent officials working on this. We take her questions seriously, and I hope that as the assessment continues we will go skipping as lambs in the new year when we have seen the outcome.

[Baroness Donaghy]

I thank the Minister for that answer. We will be monitoring the situation closely and are keen to have answers about resourcing. In that context, I beg leave to withdraw the amendment.

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[Lord Marland]

I can give noble Lords a very simple answer because both the Government and the people observing us will want to make sure that there is a review of how ACAS is performing. As the noble Baroness will know better than I, having been the chair of ACAS, it has to report annually to the Secretary of State, and we will insist on that. For those who are interested, it is set out in Section 253 of the Trade Union and Labour Relations (Consolidation) Act 1992. I can tell the noble Baroness that early conciliation will form part of that report, so in our view there is no need to have a separate report from what is embraced in the annual report. I hope that satisfies the noble Baroness, but I want to say that it is fundamental that this is reviewed and that the whole thing is taken seriously. The report is published and will be available in the Library of the House, so everyone has an opportunity to read it and make sure that everything is progressing in the way we all hope it will.

[Baroness Donaghy]

I thank my noble friend Lord Young for his contribution and the Minister for his answer. I am afraid that I am not entirely satisfied, mainly because the ACAS council report has to be essentially apolitical and must not comment on government policy, so the likelihood is that the judgment will be made on the efficiency of its organisation and the effectiveness as it sees it of the new procedure. It would not take account of the things I mentioned on an earlier amendment, including the wider impact on employment relations; that is, elements that might be said to be more political, with a small “p”. It also does not take account of an independent assessment of the adequacy of funding or of the impact at employment tribunals because it would not be proper for ACAS to comment on how the tribunals run their business. There are concerns, perhaps more particularly around the certificate. ACAS might have its own judgment about how effective it is as a process, while an independent assessment might make a different judgment. I am not saying that that would happen, but just relying on the annual report of the ACAS council may not provide the information we are looking for.

In agreeing to withdraw the amendment, I hope that the Minister will take account of the points I have made.

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[Baroness Donaghy]

I want to emphasise that I think that the noble Baroness, Lady Brinton, had it spot on about the reasonableness issue. I know a great number of judges who sit on employment tribunals, and their background is not always in employment relations. They are interchangeable. They go on to the High Court in many cases. I think that they value very much an area of law which is a much more vague part of our legal system in the sense that it is about the workplace and the different power structures of a workplace.

It is important to the judges that they have people with experience of the employment relations world—not employment law, but the employment relations world. That comes back to what I said earlier. I accept that, as the Minister said, this is about whether the case was carried out properly, but it is in a context where the employment situation has to be taken into consideration. We are not talking about equals in a power struggle; we are talking about a very different level of perception. This is about perception: it is important that people see that, up there, there is an employer and an employee sitting in judgment. I think that the applicant and the respondent would be much more likely to respond to a result—as I said, perception is important in the employment world—than they would if a judge, possibly a brand-new judge who had not sat on the case before, were sitting alone. This issue is important, and we would like the Minister to reconsider it.

[Lord Marland]

I am not denying the issues that the noble Baroness refers to. No one is. We completely understand those issues. As I referenced earlier—the noble Lord, Lord Monks, referenced it, too—the judge can turn to external advice to support them in a case if they need to. There are complicated circumstances but, in relation to this amendment, the reality is that they are being invited to make a judgment based on the law. It is not about the extenuating circumstances; it is not a question of asking, “Should we give them more money?”. It is about the law and the interpretation of the law in coming to a judgment. Other aspects are involved, which is why the ACAS system is so good because it is conciliatory between two parties. In this instance, however, where you are being asked to interpret the law, we believe that the judge is the person to do that. We totally understand all the permutations around employment disputes, but at the end of the day it is the judge who will determine it. An employer or an employee should want their case to be found within the law by someone who can interpret it.