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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.
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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.
Lord Goodlad: My Lords, I thank the Minister first, for accepting the amendments that I moved on Report with the support of my noble friend Lord Newton of Braintree, my noble and learned friend Lord Lyell of Markyate, the noble Lord, Lord Thomas of Gresford, and my noble friend on the Front Bench. Secondly, I thank her for her explanation of the consequential amendments, which have resulted from her further consultations. I would be happy to support them and thank her for her part in a helpful scrutiny, making this a stronger Bill than it would otherwise have been.
Lord Newton of Braintree: My Lords, as one of my noble friend’s accomplices in this matter I join in thanking the Minister for her positive response. I noticed the difference, to which she has referred, between the new clause inserted on Report and the modification of Schedule 8 proposed today in her amendment. I was going to quiz her about it but she has predicted that someone would, so I will not. Having met those conducting the review of employment tribunal matters only last week, I understand the noble Baroness’s point and think it is a reasonable explanation of the difference.
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I have one other more general point, on which the answer may be clear to the lawyers who read the provisions but not to me. They seem to be couched in terms of which staff or members of tribunals can carry out mediation or receive fees for it. However, very few staff currently in the system will be trained in, or have experience of, mediation. Outside the tribunal service a significant number of people have experience in and are trained in mediation. If the Minister cannot give me an answer to my question off the cuff, I would like her to write to me. Is it envisaged that it will be possible to use people outside the service to provide mediation? It would seem sensible to at least provide for that opportunity.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Newton of Braintree. I can confirm that it would be possible under the legislation to use those outside the tribunal. I am extremely grateful to the noble Lord, Lord Goodlad, for welcoming these tidying up amendments and recognising the change that I made. I hope that noble Lords will accept the amendments.
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 7:
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 8:
(e) mediation conducted by staff appointed under section 40(1).”On Question, amendment agreed to.
Clause 49 [Orders and regulations under Part 1: supplemental and procedural provisions]:
Baroness Ashton of Upholland moved Amendments Nos. 9 and 10:
On Question, amendments agreed to.
Lord Lucas moved Amendment No. 11:
Within twelve months of Royal Assent, the Secretary of State shall lay before Parliament regulations to create a specialist regulator of enforcement agents that will—
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The noble Lord said: My Lords, perhaps I may start by being nice and saying that the Minister and her whole team have been immensely helpful in dealing with bailiff regulation since the Bill first appeared. I am grateful to them for their time and effort. However, I think that they have taken a severe wrong turning in trying to cobble together a regulator out of the Security Industry Authority and various other bits of legislation that they happen to have lying around. It will be extremely difficult to get it right and it will require a lot of perseverance and diplomacy to make it happen at all. The noble Baroness has those characteristics; I hope that she remains in her place for long enough to do it.
The Government have chosen to go for a mix of Security Industry Authority and existing DCA powers to try between them to provide for a regulator that will come up to scratch in regulating bailiffs. It will clearly take a long while to get there. Today I am aiming, not to impose on the noble Baroness my own idea of what a regulator should be—I hope that this is a fight that will carry on into the Commons and that they might do that—but to obtain from the Government a commitment to see the matter through to the end. Where we are now is where we began in 1992 when it first became apparent that bailiffs were misbehaving in their enforcement of poll-tax debts. That misbehaviour has carried on unabated; indeed, it has been exacerbated because so many more aspects of our lives are now frequently attended to by bailiffs, notably congestion charges and other incidental taxes on motorists. The more time passes and the more fixed penalties are invented to avoid lengthy procedures for our police force, the more bailiffs will come into the necessary matter of enforcement at the end of the day. From the many people who have written to me, I know that it is enormously important that that serial and compounded injustice is brought to an end in a way that preserves the revenue of the Government and their various offshoots and preserves the principle that those who are owed money should pay it. It is crucial to get that right.
3.30 pm
My amendment sets out the principal matters on which I am looking for a commitment—I emphasise the word “commitment”. We all hope that we will go in the same direction; but I want a commitment. Paragraphs (a) and (b) are self-explanatory: not only are we looking for the individual bailiff to be regulated but also the people who control bailiffs; otherwise it is too easy to maintain the fiction that people are running a reputable bailiff business but allow individual bailiffs to misbehave below that. It must bite on those such as Equita, a subsidiary of Capita, which is a very reputable company. They must realise that they must behave.
It must involve setting standards of conduct which have consequences for a bailiff. It must be known both to the bailiff and to the people whom they are dealing with what standards of conduct are expected. That must be made evident at the beginning of the process, as the High Court bailiffs do now. The first part of the transaction is that the debtor is handed a leaflet or leaflets explaining the procedure and their
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The regulator must monitor performance. It must be an active regulator, but not an overbearing one. One or two of the smaller bailiffs have written to me to say that they really do not want a body that will charge them immense fees just for the pleasure of investigating them. I hope that the process will result in an industry that largely behaves; none the less, there must be monitoring.
Lord Clinton-Davis: My Lords, should not monitoring follow a complaint? It is, in my view, unwise to monitor regardless of that.
Lord Lucas: My Lords, I shall be satisfied whichever direction the Government take on that, so long as it is understood that the regulator has that ability. As the noble Lord says, or implies, monitoring without a complaint tends to evolve into monitoring for its own sake.
When I take my daughter to nursery school, I have to sign her in and out morning and evening. Why? No one will use that register. It is just a bit of monitoring that Ofsted has put there for the sake of it. I would like to avoid that. If complaint-related monitoring is the way to do that, that seems a reasonable course for the Government to take.
However, I do not want a regulator that sits there believing that mischiefs are taking place but thinks that it can do nothing until someone complains, because that is another mischief. If it has to wait until there is an active complaint, rather than saying, “No, this is going the wrong way. The reputation of the industry is being damaged even if we do not have an individual complaint”, that would be a mischief also. How can one tell? This creature does not yet exist. I hope that it will be well regulated and perform better than the SIA in its early days. However, it has to be able to investigate complaints; otherwise it will have no teeth at all. If someone approaches a regulator saying that a bailiff has misbehaved and it can do nothing about it, then the regulator will have no effect.
I want a commitment from the Government to an investigatory power and practice which is open and which goes beyond that which the SIA has chosen to exercise. The SIA does not tell those who have complained what the results of its actions have been, which seems entirely inappropriate in the case of bailiffs. At the end of the day, it must have the ability to exact fines or the cessation of licences in a way which hurts a serious business enough for it to sit up and take notice.
On the other hand, I would not like to see bailiffs regulated in the way that teachers are regulated. If teachers have a complaint made against them, they are suspended and can spend one or two years sitting around waiting for adjudication. I do not think that is necessary in the case of bailiffs, except in extreme cases. Generally, if you are trusted to be a bailiff in the first place, you are trusted to continue in the business until you are found to have done wrong. I am looking
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If I can have not comfort but commitment from the Government that they will see this through, I will be content to withdraw the amendment. For now, I beg to move.
Lord Maclennan of Rogart: My Lords, we have seen considerable movement in this sphere of regulation and enforcement during the debates on this Bill and so far they have been in a positive direction. At an earlier stage the Minister said that there was no lack of will on the part of the Government to do something about regulation but there was some uncertainty about the mode of doing it most effectively.
The sole purpose of my intervention behind the noble Lord, Lord Lucas, whose work in this sphere has evoked admiration across the House, is simply to inquire whether the Government intend that the options on which they are consulting should not be confined by the timing for the remaining stages of the Bill, excluding the possibility of including provisions which satisfy the concerns expressed by many consumer bodies, including citizens’ advice, that the SIA is not, through a regulatory process that it might devise, necessarily the best way to proceed.
I hope that the Government will avail themselves of the opportunity to reach a conclusion on matters that have given rise to concern. Before the opportunity for amendment of primary legislation ceases, it may be necessary to take account of the concerns voiced.
Baroness Ashton of Upholland: My Lords, I am extremely grateful to the noble Lord, Lord Lucas. He has, as the noble Lord, Lord Maclennan of Rogart, said, worked tirelessly on this issue. He has held me to account in many ways and ensured that the Government have moved considerably to address his concerns. I am more than happy to give him as much commitment as I can, not on my own behalf, important though that may be, but on behalf of the Government, because it will be a team effort to bring in this provision. I said when we discussed this issue previously that we plan to lay the regulations by the summer. That is our timetable; it will be an important conclusion.
I hear what the noble Lord, Lord Maclennan of Rogart, says about primary legislation and I understand the desire for it; in a sense it is where I began. However, we believe that we have the legislation in place and that we need to use the regulations in the Private Security Industry Act 2001 to enable us to do this. The noble Lord, Lord Lucas, is also right to say that we must make sure that we get the regulator right, which is what lies behind the proposals of the noble Lord, Lord Maclennan. The regulator must be able to do the job. I have already made that commitment to those in the industry itself, who are of course keen to see this come into being. We will work as closely as we can
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On the amendment before us, what I cannot commit to is a 12-month timescale because I do not yet know what the timetable will be. However, I can make a commitment to lay the regulations before Parliament. That in itself will give us another opportunity to consider and debate in more detail what is to happen. I hope that what I say now will satisfy the noble Lord and allow him to withdraw his amendment in the recognition that we are planning to do what he seeks to achieve.
Our proposal means that all enforcement agents who are not Crown employees will be licensed by the SIA and that there will be no exceptions. The noble Lord, Lord Lucas, asked on Report whether there might be exceptions for some employees of large companies where a significant proportion of the employees are already licensed. That will not be the case. I should add that licensing will also apply to managers and supervisors in companies directing enforcement activity. Through regulations we want to drive up standards across the industry, in particular by setting strict competencies and conditions for those individuals who apply for a licence. On punishment for failure to comply with standards and redress, as I said on Report, a whole range of offences is set out in the Private Security Industry Act and specifies penalties where any person contravenes a condition of the licence granted to him. The penalty for this is a term of imprisonment not exceeding six months, a fine not exceeding £5,000, or both. The SIA also has the power to revoke or modify licences. These sanctions represent the most serious end of the scale, of course, and I understand that the SIA also uses sanctions such as written warnings and improvement notices as part of its compliance activity. Further details of those are set out in the enforcement policy code of practice.
Along with other regulators, the SIA is considering whether it wishes to take on additional or alternative powers as recommended by Professor Richard Macrory in his independent review of regulatory penalties. I agree with the noble Lord that it is vital for debtors to have access to a workable system for complaints and redress. My officials are committed, as are the Government, to developing appropriate procedures with their colleagues in the SIA and the Home Office as well as with stakeholders across the system. For example, we need to consider what role might be played by alternative dispute resolution in this. For a complaints system to be effective, debtors as well as enforcement agents need to be aware of their rights, particularly in relation to the powers available to agents. I believe the Bill is clearly drafted in this respect, but my department wants to ensure that information about these rights is clear and accessible to the public. This will be achieved through information leaflets and so forth. Finally, although Crown employees will be exempt from regulation, I am committed to ensuring a common set of standards and a common appearance across the enforcement industry.
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I hope that the word “commitment” has been used sufficiently often for the noble Lord to feel that I have addressed the concerns he has raised.
Lord Lucas: My Lords, I will withdraw the amendment. The noble Baroness has continued in her tradition of helpfulness on this and has gone far enough. As I have said, I hope that this argument is raised again in the Commons because it requires to be tested in terms of whether the Government’s chosen route is the right one. Given that this is the way they are going, I wish them every good fortune and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Judges and other members of the First-tier Tribunal]:
Baroness Ashton of Upholland moved Amendment No. 12:
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 13 and 14.
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