323A At the end of subsection (7) of the new section 10 of the Employment Tribunals Act 1996, insert—
("(c) permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.")
§ Lord Sainsbury of Turville
My Lords. I beg to move that the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.
The Bill provides that a Minister may direct that an applicant and his representative be excluded from all or part of the proceedings where the interests of national security require it. We anticipate that the power to exclude from all future proceedings will be used rarely and only in the most extreme circumstances where national security interests could not be adequately protected otherwise. Where an applicant and his representative are excluded from proceedings, the Attorney-General, or in Scotland the Advocate General, will appoint someone to represent the applicant's interests.
At Third Reading the concern was expressed that if the applicant was excluded from all the remaining proceedings he would not have the opportunity to make a statement of his case. Since it is government policy that such a statement should be able to be made where an applicant is so excluded, I undertook to see what needed to be done to ensure that the regulations would provide for this. This amendment is the result. It provides the vires for regulations to be made permitting an excluded person to make a statement to the tribunal. I am grateful to the noble Lord, Lord Razzall, and the noble and learned Lord, Lord Archer, for bringing to our attention this defect in the Bill.
To make the position absolutely clear, the Secretary of State in another place gave a commitment that the procedure regulations will provide that such a statement can always be made to the tribunal where the applicant is being excluded from the remaining proceedings. He also said that in drawing up the regulations he will consult members of the Intelligence and Security Committee.
To sum up, the amendment will ensure that a statement of case can always be made where the applicant is being excluded from all the remaining proceedings. At the same time it does not prevent the exclusion of the applicant from all of the proceedings, which will continue after the statements, in those rare instances where a Minister of the Crown has made a direction to that effect in the interests of national security. Accordingly, I hope that noble Lords will agree to the Commons amendment.
§ Moved, That the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.—(Lord Sainsbury of Turville.)
§ Viscount Thurso
My Lords, this amendment stems from the amendment moved by my noble friend Lord Razzall at Third Reading. We are very grateful to the Government for having taken on board the points mode 1367 and for bringing forward this amendment. I am grateful to see the noble and learned Lord, Lord Archer of Sandwell, in his place because I know that he is going to give us a far more comprehensive explanation of this matter than I could.
However. I express our unhappiness at the fact that the amendment goes only some 60 per cent of the way. While we are extremely happy that at least the applicant now has the opportunity to make his case prior to being excluded, there is not much that he can do afterwards if he chooses to disagree. As my honourable friend Alan Beith said in another place,We remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense".—[Official Report, Commons, 21/7/99; col. 1256.]Surely, the suggestion made in another place that members of the commission should be empowered to review the exercise of the Minister's powers was a modest and sensible suggestion and one which this Government of all governments might have felt able to consider.
Having stated our unhappiness at that aspect, we are grateful that the first point was taken on board and that this amendment has been brought to us. It is a shame that it is so late in the day that I do not believe that there is anything that I can do about the other part. I am not even sure what the constitutional position would be if I asked your Lordships to do anything about it. So I shall just have to take the hump and leave it at that.
§ Lord Archer of Sandwell
My Lords, it grieves me to disappoint the noble Viscount, but I suspect that if I were to undertake a comprehensive survey of the position at this point it would not improve my popularity in your Lordships' House.
§ Lord Archer of Sandwell
My Lords, I seem to have touched a deep note. I thank my noble friend for having listened to our representations. It is not a schedule I would have drafted in a perfect world, which I define as one in which I draft all the Government's legislation. My noble friend has listened and I am grateful for that.
§ Baroness Miller of Hendon
My Lords, we on these Benches are grateful for the movement that the Government have made in this matter. We were obviously very disappointed when, on 15th July, the noble Lord, Lord Razzall, felt it necessary to withdraw the amendment because we considered that it covered the situation better than the amendments we have seen today, particularly because my right honourable friend in another place, the Member for Bridgwater, tabled the same amendment which the Secretary of State pointed out was not necessary because the Government had gone 60 per cent of the way in their amendment and promised to try to go 100 per cent of the way via the regulations. However, he conceded that it was almost impossible to achieve 100 per cent success.
1368 We are sad that we are being offered admittedly flawed legislation as regards the 40 per cent we have not got when the Government, in the person of the Prime Minister no less, on receiving the original recommendations from the Intelligence and Security Committee that my right honourable friend chaired, suggested acceptance and the Employment Relations Bill as the vehicle for the amendment.
I am not going to say, like the noble Viscount, Lord Thurso, that I will have to accept it with the hump. We are grateful for the movement made. We would have liked a little more, but never mind.
§ Lord Sainsbury of Turville
My Lords, I would not want to delay people either on this point. If one looks at the matter carefully, I believe it will be seen that we have far more than 60 per cent. I believe the basic issue is covered of being able to make the statement and that the way in which we are doing it covers the technical point, but that if it was not done in such a manner it might make it impossible to exclude people from the rest of the proceedings. That would not be correct.
As regards reviewing the Minister's use of directional power, I believe that a judicial review is an appropriate remedy for determining whether a Minister has misused or abused his power. A Minister would have to justify the use of his power in an adversarial context and, much more important, such a review would provide an immediate remedy to the applicant if a Minister was found to have acted improperly.
As regards the funding of the judicial review that is the mechanism for contesting a Minister's use of his power of direction, where the applicant wishes to be represented, depending on the circumstances, he may be eligible for legal aid. On that basis I ask the House to agree with Commons Amendment No. 323A as an amendment to Lords Amendment No. 323.
On Question, Motion agreed to.