§ 8.21 p.m.
§ Lord Borrie rose to move, That an Humble Address be presented to Her Majesty praying that the order, laid before the House on 20 July, be annulled (S.I. 2004/1861).
§ The noble Lord said: My Lords, I have prayed against the regulations because the House should consider the background to and consequences of Regulation 17, which removes from the public record all information about applications made to an employment tribunal. Regulation 17 requires that only judgments should be on public record. Whatever reasons may have influenced the Government's thinking, that regulation is not some minor administrative detail, as it undermines our system of open justice.
I have a special interest in the matter, because I promoted the Public Interest Disclosure Act 1998 in this House. I am particularly concerned that the purposes and operation of that Act, which are to protect from reprisal employees who blow the whistle in the public interest, will be thwarted if this departure from our system of open justice applies to applications made under it. It is common ground that the
implications for the Act are an important and distinct issue. When the DTI announced the abolition of the register of applications in July this year, it stated at paragraph 53:
The Government will however give further consideration separately to the contention by Public Concern at Work (PCaW) that claim and response information on public interest disclosure cases should he treated exceptionally".
As a patron of Public Concern at Work, often known as the whistleblowers' charity, I hope that the Minister will be able to tell the House that applications under the Act will not be kept from the public record and will be subject to a separate regime.
§ When the Public Interest Disclosure Act was considered by the House, the legal position, as established by the High Court not long afterwards, was that applications made under it were public documents available on the employment tribunal register. That is important for at least two reasons. First, it meant that it was possible for the charity or anyone else to monitor and research how the Act was used. Relevant information would include: whether the alleged wrongdoing was fraud, danger to the public or abuse of persons in care; whether the disclosure had been made to the employer or outside; and whether the reprisal against the employee was dismissal or something less. With such information on the public record, this House and others were able to discuss how the Act was working and whether some amendment might be warranted.
§ Secondly, because the information was on public record, it removed or greatly reduced the risk that an employer and employee might trade the public interest for private gain. Let us suppose that an employee was dismissed in breach of the Public Interest Disclosure Act for blowing the whistle to his employer regarding a developing financial scandal. If he brought a claim under the Act, which the parties then settled, that concern regarding the developing financial scandal would be on the public record. That would mean that, even if the claim was settled, the employer would still have every reason to address, and be able to show that he had addressed, the alleged wrongdoing. Importantly, that also meant that there would be scant temptation for either party to try to settle the claim for a premium, on the basis that the financial scandal would remain undetected, allowing the employer to avoid the cost of remedying it and/or of any penalty that regulatory authorities might justifiably impose.
§ That was the position when the House debated and passed the Public Interest Disclosure Act six years ago. The public record allowed the use of the Act to be monitored and, more importantly, it provided the framework within which the Act's approach to employee responsibility, organisational accountability and the public interest would work. Today, that is no longer the case. Yet, this is the first time that this House has had an opportunity to hear the Government's thinking. In my view, even if there is no longer a public record of applications in general employment claims, I trust that the Government will 1380 agree that a separate scheme is required for public interest disclosure cases. The public interest requires nothing less.
Perhaps I may quote statements made by my noble friend Lord Sainsbury of Turville, the relevant Minister, three years ago. On 3 July 2001 he wrote to Public Concern at Work:
The issue of disclosure of employment tribunal applications is a difficult one on which the Department judged that a careful path had to be negotiated between, on the one hand, the public interest in access to details of tribunal applications and, on the other, the need to safeguard the privacy of individuals".
The Minister then referred to a judgment of the High Court, in a case brought by Public Concern at Work in April 2000. He quoted Mr Justice Jackson as saying,
that the revelation of sometimes embarrassing information was part of the price of our open system of justice; that litigation should as far as possible be conducted under the public gaze, and that the principle of open justice should apply to employment tribunals with as much force as it applied to the other courts".
When the Minister wrote those remarks, it is important to emphasise that he, like the High Court, was referring to all employment tribunal applications, not just those brought under the 1998 Act where the public interest arguments on openness are much greater.
§ I should make clear that these remarks were made when the Minister was explaining why the department had, contrary to express assurances given to Public Concern at Work, rushed through temporary regulations in the summer of 2000 to remove the right of the public to access employment tribunal applications. The Minister explained that in the months since the High Court ruling it had not been possible for the department to resolve its concerns over data protection, the right to privacy and the implications for the conciliation process.
Since then, officials have been considering and consulting on how to take this issue forward. Rather than negotiating a careful path, as the Minister said.
between the public interest in access to details of tribunal applications and the need to safeguard privacy",
Regulation 17, the regulations before us today, headed off into the undergrowth where the privacy of individuals would take absolute precedence over any and every other public interest. That departure from the path, which had, after all, been set out by the Minister himself, has particularly serious implications for monitoring the Public Interest Disclosure Act.
§ I have tried to understand how the department has come to this position and I am at a loss. Much of the history is being investigated by the Parliamentary Ombudsman and I would prefer that we had her report before us. Indeed, I would far rather the department had considered her report before wandering further off' into the undergrowth and bringing in Regulation 17. Be that as it may, it seems clear to me that the process by which this policy was produced is, I am afraid, littered with mistakes, misunderstanding and misrepresentation.
§ The main mistake officials made was the unilateral decision in July 2000 for the first time to put on the register the addresses of the parties. This they did without consulting any of the relevant interests and 1381 ignoring advice that such a move would facilitate the activities of ambulance chasers and others and increase unsolicited and unwanted approaches being made to the parties. In the past three years, ambulance chasing in the employment field has exploded and become a pressing problem. While this problem, which is entirely of the department's own making, could be easily remedied by removing the addresses from the register, it is the primary reason now put forward for abolishing altogether the register of tribunal applications.
§ The misunderstandings have been many but I shall mention two concerns which lured officials away from the well trodden path of open justice. First, they took the view that conciliation would be prejudiced if tribunal claims were on the public record. In doing so, they seemed to have no regard whatever to the long and extensive experience of the higher courts of open justice where there is no evidence of any such effect. Secondly, the officials wrongly assumed that the Data Protection Act in some way prohibited Parliament from legislating on this issue, a point which I believe they now accept is erroneous.
The misrepresentations, too, have been several. The consultation paper that preceded these regulations was written in ignorance or defiance of the Minister's acceptance of, to quote from the statement made by the noble Lord, Lord Sainsbury,
the public interest in access to details of tribunal applications".
No such reference is hinted at in the DTI paper. The principle of open justice is not mentioned and the High Court's decision on this very matter does not even merit a footnote.
§ Furthermore, the DTI's public statements imply that it is only the charity, Public Concern at Work, which believes that information about these claims should be on the public register. Yet over the four years, this has been a policy which the DTI knows had been publicly supported by many others including the CBI, the TUC, the Institute of Directors and the Council of Employment Tribunal Members.
§ Having looked at how the Government have come to this policy position, I think it is fair to say that officials, having lost or discarded the map which the Minister had given them, felt they had no option but to make things up as they went along. That is not a charge easy to make and it is a troubling charge for Ministers to consider. But let us briefly revisit the three issues which he said the department needed to weigh against open justice to find the right way forward: data protection, risk to conciliation and infringement of privacy.
§ It is agreed that data protection is no longer an issue. As to conciliation, this is not cited in the Government's response as a reason for rejecting the public interest of open justice. On people's privacy, as I have said, this has been widely infringed by the department's insistence on putting private addresses on the register in 2000. 1382 There is however one new reason on which the department now relies and this, too, I should mention. It is now claimed there is a concern that the register is used for blacklisting employees. No one approached by Public Concern at Work has been able to provide any tangible evidence of such misuse and none was given in any of the responses to the DTI's consultation. I hope that the Minister can confirm that this is not a case of public policy being built on some unsubstantiated rumour and that he can provide details of such instances, if there are any, to the House.
§ For the reasons I have given, I hope that the Minister will agree that the policy underlying Regulation 17 is badly flawed and indeed that the process by which it was arrived at was also badly flawed. Had officials heeded the words of the noble Lord, Lord Sainsbury, about keeping to the careful path between public interest in access to tribunal applications and individual privacy, a good deal less time would have been wasted and less damage caused.
§ If what I say tonight causes officials or Ministers to recognise and address the problems, I shall be delighted. Of course, I have no wish to vote against these regulations this evening as they contain many worthwhile provisions.
§ Perhaps I may end as I started with the two points about the Public Interest Disclosure Act. The first was the need for this House and others to know how the Act is operating in practice. I hope that the Minister can confirm that the Government will give a positive welcome and every support to any application that Public Concern at Work may make to the Employment Tribunals Service to enable it to monitor the Act and to brief this House and the public accordingly.
§ As to the second, I hope that the Minister will confirm tonight that the Government agree that information about public interest disclosure cases will come under a different regime. By placing both claims and responses on the public record, people will be able to see how the Act is being used and, if it be so, abused. For us to fail to do that would be to fail the public interest.
§ Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 20th July, be annulled (S.I. 2004/1861).— (Lord Borrie.)
§ Baroness Turner of Camden
My Lords, I rise to support my noble friend. As he has explained, we are concerned that Regulation 17, which is now before the House, could be to the disadvantage of a number of people. It deletes from the public record information on employment tribunal applications. As my noble friend explained, that is a departure from the system of open justice to which most of us subscribe.
I understand that the DTI wants to remove all this information from the public record because of what it sees as the explosion of ambulance-chasing that has occurred in employment cases in the past four years. As I understand it, it is the view of the TUC that that 1383 problem could have been resolved by the removal of individuals' private addresses from the register. That does not appear to have been considered by the DTI.
The register of applications serves an important purpose. It allows information about the enforcement of employment rights to become publicly available. Many special interest groups, including unions, may wish to monitor certain types of case. The information is necessary to them in order that they may effectively represent members' interests and so that they are also in a position adequately to advise individuals seeking to obtain what they see as justice via the tribunal system.
The proposals that we are discussing tonight are of particular concern to an organisation with which I have been in touch from time to time—Public Concern at Work—and which I think does very good work in protecting the rights of individuals, particularly those who may get into difficulty because they have sought to blow the whistle on some dubious activity at their workplace.
The Public Interest Disclosure Act was intended to protect the employment rights of whistleblowers. There is now particular concern that it will not be possible adequately to monitor the way in which the PIDA is working, and that is necessary if the protections that the Act was meant to enforce are to be readily available.
I do not wish to add further to what my noble friend Lord Borrie explained in such detail—he is a well known expert in this area. But I hope that my noble friend's Motion will be sympathetically considered by the Minister this evening.
§ Baroness Dean of Thornton-le-Fylde
My Lords, first, I declare my connections with Public Concern at Work, which go back some years. I remember very well that when we discussed the 1998 Bill, we all welcomed it very much. However, little did I think that, all these years later, we would be having this debate tonight. In my view, that will diminish the whole intention of the Act, which was very welcome at the time that it went on to the statute book.
I thank my noble friend Lord Borrie for raising this issue this evening and for the usual forensic way in which he has approached the subject. It is not a matter of detail; it is a very serious issue.
As things stand at the moment with regard to government policy, we shall not have a record of cases which do not go the full length of a tribunal. Quite often my experience has been that those that go to the tribunal are the most serious cases. I recall the Second Reading debate of the Act when pensions and whistleblowing were very much in the minds of a number of noble Lords.
It is a serious issue. I know that there is a concern about ambulance chasing. I do not believe that anyone in this Chamber this evening would support that. In a way, the growth in ambulance chasing has been encouraged by putting the address of the individuals 1384 concerned in the register. If those were removed. I believe that the issue would decline substantially. I am not aware that there has been any call from the TUC, the CBI or any of the bodies experienced in this area to get rid of the register. That is the key point. The Act and public disclosure go hand in hand with the provisions about which my noble friend Lord Borrie was speaking.
I hope that my noble friend the Minister has some encouraging words for us. Quite frankly, as matters stand at the moment the situation is quite depressing. In my view it will encourage some of the very worst elements in employment to do their worst and then believe that they can buy themselves out of the situation and that by doing that it will not end up in the tribunal. That, in itself, implies bullying of individual employees who, in many cases, will not even be represented by a union, but will be individuals on their own, without any kind of support at all. I welcome very much the move of my noble friend Lord Borrie.
§ Lord Razzall
My Lords, I apologise in advance to the noble Lord, Lord Borrie, and to the Minister. Depending on the length of speeches I may have to depart before having the benefit of hearing the Minister's speech as we have started this business an hour late. I know that the Minister shares my concern about that, but all I can say is that he is paid for this and I am not.
I entirely agree with the general sentiments put forward by the noble Lord, Lord Borrie. It was interesting that the reasons the noble Baroness gave for why the noble Lord, Lord Borrie, was right were exactly the reasons why Ministers so far have refused to accept the points that the noble Lord, Lord Borrie, has made. As I understand it, the major argument against him has been that the position of whistleblowers would be prejudiced and the noble Baroness indicated that the reason she supports him is to ensure that the interests of whistleblowers are protected. That demonstrates why this is a serious issue. As the noble Baroness has indicated, this is not just a matter of detail in relation to regulations; this is a fundamental point of principle, and all round the House there is concern that the Government do not have this right.
I can quote from a number of statements made by Ministers quite recently. The enterprise Minister, Nigel Griffiths, told the Commons this February that,it is in everyone's interest to ensure that there is as much public disclosure as is practical and that this type of legislation is as effective as possible".—[Official Report, Commons, 11/2/04; col. 468WH.]The employment Minister, Gerry Sutcliffe, recently assured MPs that,the DTI has no objection to whistleblowing claims being made public".The noble Lord, Lord Sainsbury, recently wrote that the Government would,negotiate a careful path between the public interest in access to claims and the need to safeguard individual privacy".1385 So the Government are well seized of these significant issues of principle. This month the employment Minister, Gerry Sutcliffe, has written to MPs saying that whistleblowing claims under the Public Interest Disclosure Act,raise unique public interest issues".That is why the noble Lord, Lord Borrie, has tabled the Motion. A general consensus on all sides of the House will be that perhaps the Government could now look again at the matter. It is particularly unfortunate, as is often the way, that the relevant regulations were brought in two days before the Summer Recess, which of course meant that proper scrutiny of the regulations inevitably did not occur in the way that it might perhaps otherwise have done.
I recognise that this is a delicate balance. The fact that the noble Baroness indicates on the one hand that the arguments the Government use are the reasons she thinks the Government are wrong shows how delicate this issue of principle is. I share the view of the noble Lord, Lord Borrie, that this is not a moment to try and overturn the regulations, which is all we can do, but I hope that in the light of the debate the Government will think again.
§ 8.45 p.m.
§ Baroness Miller of Hendon
My Lords, the Explanatory Memorandum to this massive 72 page statutory instrument claims that it is merely a re-enactment of the 2001 regulations, re-drafted in simpler language, with some re-ordering and renumbering, although it then goes on to concede that, apart from minor drafting amendments, there are "changes of substance". Those substantial amendments are covered by some three pages of abbreviated explanatory notes.
I have to say that, bearing in mind that the Government's stated objective is to simplify matters and procedures, those laid down by these regulations are extraordinarily complex when considered from the point of view either of an employee acting in person, without the assistance of a union or a lawyer—the latter being a rarity except in major cases potentially involving large sums of compensation—or the point of view of a small employer; the owner of a corner shop, for example, who has got into a dispute with one of his workers.
There are draconian penalties on both parties for failing to comply with very strict time limits, without, so far as I can see any discretion to the tribunal to extend those limits for whatever good reason there may be.
I should like the Minister to reassure me on this point, because it may be very hard on the employee, who may need time to find out what his rights are and how to enforce them, including getting the necessary forms—and I want to touch on the forms in a moment. It may be equally hard on the employer, who may be even harder put to deal with a matter without recourse to paid legal help.
1386 I accept that from both points of view the last thing wanted is for the threat of a dispute to be hanging about for an excessive time, or to arrive like a bolt from the blue when the employer has justifiably thought the problem with that particular employee was disposed of.
My second problem is that the president of the tribunal has power to prescribe the forms to be used. Of course there is nothing wrong with that in principle, because all the courts and quasi-judicial bodies in this country have this power.
However, there are tried and tested forms in use under the existing regulations, as there were under the earlier regulations, and I would like to hope that there will be no substantial changes to these without a very good reason. In particular, I should like an assurance that the forms being served by an applicant or complainant—whatever they may be called—contains, conspicuously, details of the procedure to be adopted by the employer and the time limits and the consequences of not complying with those time limits.
Similarly, I understand that at the moment the employer receives with the complaint form a copy of the form to be used in responding so that he does not have to go hunting on the Internet to find them. I should like to be assured that this practice, as well as that of including details of employers' rights and time limits, will not be altered by the president, notwithstanding the autonomy that these proposed regulations will give to the president.
Furthermore, and not for the first time, the regulations provide for different regimes between England and Wales on the one hand and Scotland on the other. Without wishing to re-open the devolution debate, it would be nice to know that at least the procedures on both sides of the Border will be consistent with each other, and that there will be no anomalies depending on which side of the Border a case is brought.
Leaving those points aside, there is another problem over one aspect of the order which has been mentioned before. That relates to the abolition of the register of cases. As I understand it, the noble Lord, Lord Borrie, who kindly mentioned it to me earlier and who has explained it so clearly this evening, wants the register restored, but would like it to be more detailed than under the existing regime, which is to be abolished in its present form under new regulation 32.
Previously the register under rule 12 in Schedule 1(2)(2) had to contain details of the application which included the names of the parties. The new proposed regulation abolishes the requirement to list the names of the parties.
There was, I understand, a case in the High Court as to the contents of the register, as mentioned by the noble Lord, Lord Borrie. The judge laid down requirements as to the contents of the register but, as is not uncommon, this is being gold-plated so as to include details of the addresses of applicants. That is one of the things that has caused this problem.
1387 The consequence has been that applicants are besieged by ambulance chasers offering to work on a "no win, no fee" basis. That has the opposite effect of the intention of the procedure, which was supposed to keep the disputes as simple and as non-adversarial as the circumstances permit, and not, to be blunt, to provide a new pot of jam for lawyers.
The High Court case was followed by a consultation on this aspect of the proposed new regulations. I have received serious complaints that the published result of that consultation had been, to use a current phrase, sexed-up. Among the options canvassed were: the abolition of the register; the maintenance of the register so as to retain the details of the addresses of the applicants; or the retention of the register without the addresses.
It seems that the answers asking for the maintenance of the register without the addresses have been treated as supporting abolition. The details of the names of applicants and respondents serves a reasonable purpose in the light of evolving rights of freedom of information and other such matters.
Details of the claimants and defendants in cases before the civil courts can be obtained without having to have the details of addresses. Any use of such addresses by anyone, not merely journalists, would amount to contempt of court. So adding their addresses serves only to create dangers other than that of being harassed by ambulance chasers.
I listened very carefully to what the noble Lord, Lord Borrie, said about the possibility of blacklists being compiled. He said that apparently there had been no evidence although I was lobbied on that point. However, I am prepared to accept that there is no hard evidence on the matter—I am simply not sure.
The Government have taken a system of maintaining a register which has existed substantially for practically 40 years, tinkered with it by adding unnecessarily and ill advisedly the addresses of the applicants and now, deciding that that was an error, they are throwing out the baby with the bathwater by abolishing altogether the essential details of applicants.
There is no urgency in pushing through these flawed regulations. The existing ones are working quite well at the moment, especially if the DTI's modifications about addresses are removed, which can be done without the need for new regulations.
Although, as the noble Lords, Lord Borrie and Lord Razzall, said, we are not opposing the regulations, we believe that it might be a good idea if the Government would take them away and think again about the points that have been raised.
§ Lord Triesman
My Lords, I am very grateful to my noble friend Lord Borrie for raising the issue of the public register of employment tribunal cases. It gives me the chance to set out the Government's policy on this. I recognise, of course, that my noble friend has been a great architect of and advocate for openness in this area.
1388 Public Concern at Work, which has been mentioned by several noble Lords, is an organisation for which I have the greatest admiration and sympathy. When I was the general secretary of the Association of University Teachers, I believe that we were among the organisation's founder supporters, and it was a decision that I never regretted. I thank other noble Lords who have contributed to the debate and will do my best, I hope in a sympathetic spirit, to respond to the points.
The Government fully support the principles of open justice. All hearings of the employment tribunals, except in very exceptional circumstances which, for the most part, occur only where national security issues are involved, are held in public. Anyone who wants to attend is free to do so; and that will remain the position. Open justice must be at the centre of this. All tribunal judgments are also placed on the public register for general inspection, and I can assure the House that that will continue to be the case under the new rules that came into effect on 1 October. Those measures ensure that justice is not only done but can be seen to be done and that the process is open and transparent.
However, open justice principles do not demand that full details of all employment tribunal claims and responses must be placed in the public domain. When a claimant fills in a claim form—I want to return to the forms and procedures in due course—and a respondent fills in a response form, those are private documents to be shared between them and the tribunal system. The forms have a purpose. They are essentially for the parties to inform each other and the tribunal of their respective claims and allegations, prior to a determination being made on them by the tribunal.
The only exception is that copies are sent to the Advisory, Conciliation and Arbitration Service (ACAS), to enable it to fulfil its statutory conciliation role. It has never been the case that the forms have been published and the Government consider that it would be quite wrong in principle to depart from that position. One obvious reason is that the tribunal might find that the claims are entirely ill founded, misconceived or vexatious.
I can say from direct experience—several of us have had direct experience of pursuing cases on behalf of members of our unions—that during the process of questioning the other side and making the initial statements about the other side, it is not uncommon for those who were involved to regard all those on the other side as unmitigated villains, and to say so. On occasion, they make assertions that are profoundly derogatory and often regret those assertions within a short time of making them. But in the process of trying to provoke discovery and to ensure that as much information as can be obtained is obtained, those things happen, often without the allegations having to be substantiated later.
To those who believe that conciliation is not necessarily an important element, I add that, in my experience, when that has happened, conciliation seldom works. It is very hard to take back and swallow 1389 some of the things that have been said and to allow a more conciliatory process. However, that begs the question about what type and amount of information about employment tribunal claims and responses it is appropriate to have in the public domain.
I say immediately to the noble Baroness, Lady Miller, that it is obviously important in answering that question that requirements, including requirements on timing and disclosure, do not become more draconian and are not changed too frequently to make it impossible for people to know what is necessary and unnecessary to do in those circumstances. Although Scotland has a degree of freedom in the matter, I understand the point about consistency, but like the noble Baroness, I think that I will not trespass across the border too much in trying to answer her point.
Prior to the changes that came into effect on 1 October 2004, the Employment Tribunals Service was required to enter on the public register the basic details of each claim, such as the date of the claim and the regional office at which it was presented and, so far as the substance of the dispute was concerned, the type of claim involved, in general terms, without reference to its particulars.
That was always the intention underlying the public register provisions. However, the Government found it necessary to introduce amendments in 2000 to ensure that the intention was met, following a High Court judgment on the interpretation of the previous version of the provisions. The purpose of the amendments made in 2000 was to enable the ETS essentially to continue its prior practice concerning the amount and type of information to be entered on the public register. But the Government also gave an undertaking at that time to carry out a full and thorough review of the issue of the public disclosure of information about employment tribunal claims and responses.
That review was one that the Government took very seriously. It entailed very careful consideration of all the issues and discussion with interested stakeholders over a number of years. It was worth spending the time because a great deal was learnt from the process. It culminated in a full and open public consultation, launched at the end of 2003, as part of the wider consultation on reform of the employment tribunal regulations.
In the light of replies to that consultation, and having given careful thought to the matter, the Government decided that pre-judgment claimant and respondent details should no longer be recorded on the public register and made provision for that in the new employment tribunal regulations. I do not accept that the options in the consultation limited people to the extent that they could not make the point that it was only a matter of names and addresses. The consultation documents that flowed back contained many details of all sorts, from all sorts of people.
It has been suggested that the public consultation document ought to have gone into still more detail about the history of the public register provisions. It 1390 has been suggested by some that it ought to have listed additional specific options for consideration, including in particular the option of removing parties' addresses from the register. It has been suggested that the presentation of the issues was one-sided. It has been suggested that the replies we received were incorrectly analysed. Perhaps the noble Lord, Lord Razzall, hinted that he felt that that might be the case.
I have to say that I cannot accept those suggestions. The consultation was carried out in line with good practice standards, and the issue of the future of the public register was discussed at a level of detail wholly consistent with the treatment of other—arguably more important, some would say—issues addressed in the document. It would not have been practicable to have listed as a specific option every possible change that might be made to the provisions. However, the document explicitly invited suggestions for alternative approaches. The Government are also satisfied that the replies received were correctly analysed. I should perhaps point out that, of the 106 organisations and individuals who replied to the consultation, two have written to the DTI to express concern about the way in which the public register issue was dealt with—they are both strong opponents of the Government's decision; I simply acknowledge that that is the case.
It had long been the practice for the parties' addresses to be entered on the public register in Scotland. The change made in that regard in 2000 merely brought the practice in England and Wales into line—there is consistency, whether or not people later liked that consistency—and was not seen at that time as something of great significance. As I said, the primary purpose of the changes made in 2000 was to preserve the practical status quo, to allow an opportunity for this whole matter to be properly reviewed, as I have argued it was.
I disagree with those who have argued that the removal of parties' addresses from the register could, by itself, have provided a satisfactory solution to all the problems highlighted by consultees and indeed by noble Lords today. Certainly, where respondent employers are concerned, removing their addresses from the register while leaving their names there would not have prevented them being identified or being contacted by those who had a mind to do so. That would have left them at risk of unwarranted damage to their reputations, where ill founded claims were made against them. It would have meant that they remained vulnerable to having their privacy breached by unwanted, unsolicited, and, in some cases, wholly misleading approaches from "ambulance chasers", of which they quite rightly complained.
It was not only claimants who suffered those problems. In the Government's view, the only way to address the problems satisfactorily was to end altogether the requirement to enter pre-judgment details of the parties on the register. I accept that claimants would normally have been more difficult to identify and contact from their names alone if just their addresses had been removed. It would not have been right, however, to treat claimants and respondents 1391 differently in that regard. They would have had to be treated in the same way. It is important as a principle that the parties should be treated equally under the tribunal's rules.
I also do not want to suggest that it is a clear-cut issue, that there are no counter-arguments or that any counter-argument is invalid. I fully accept that not all employment lawyers and consultants who used information from the public register to contact potential new clients could fairly be described as ambulance chasers. In some instances, they were, no doubt, seeking to further their business aims in what might be regarded as legitimate ways. I also accept that, in some instances, claimants and respondents involved in tribunal cases might have welcomed being contacted by third parties offering advice and assistance. The Government, however, must weigh up the pros and cons in such cases and decide where the balance of advantage lies. In that instance, we considered that the interests of tribunal users were paramount, and that, in general, those interests were not served—certainly not best served—by having the parties' details placed on the public register.
Of course, as I said at the start of my speech, it will remain the position that tribunal judgments are always placed on the register, except in highly unusual circumstances—I said what those might be—so that everyone can see how completed cases have been dealt with in all the detail that always accompanies the end of a case, but the Government are keen to promote the resolution of individual employment disputes before they reach a tribunal hearing. Indeed, the principal purpose of the new package of dispute resolution measures that came into effect on 1 October, of which the new employment tribunal regulations are just one part, is to promote the early settlement of such disputes. If parties to a tribunal case are able to settle their dispute without the need for a hearing, it is right that they should be able to do so as a private matter between themselves, without details of the dispute being placed in the public domain. That would he extremely hard, if some of the initial documents had been ventilated in public.
I recognise that, in the instance of whistleblowing, it is not inconceivable that there may be some inducement or there may be some bullying. That must also be considered. That is why I say that it is a matter of judgment. I shall turn in a moment to what might have been the solution to that.
The specific question of cases brought under the public interest disclosure jurisdiction—commonly referred to as the PIDA—has been raised. I acknowledge the pivotal role that the noble Lord, Lord Borrie, has played in getting that important legislation on to the statute book; no one has done more. The Government recognise that there are strong arguments in favour of according PIDA cases a special status, as regards public disclosure of information about claims and responses. That is in view of the unique public interest issues that they raise. That does not mean, however, that we accept that it would be right for full details of such cases to be placed in the 1392 public domain for general inspection. As I made clear, the Government consider that it would be wrong, in principle, for the forms themselves to be published.
That is not our only objection, however, to the suggestion that there should be full public disclosure. One of the underlying aims of the PIDA provisions is to encourage employees to raise matters of concern with their employers in the first instance, before going public with them. Employees do not, in most circumstances, benefit from protection under the legislation unless they have made a protected disclosure in that way. The provisions were carefully designed to avoid increasing the risk to employers of suffering unwarranted and potentially very serious damage to their reputation, in cases where either they had done nothing wrong or they were prepared to rectify matters of concern, once they had been brought to their intention. That was the basis on which the Government agreed to facilitate the introduction of the legislation. Making full details of all PIDA cases accessible to the public at large would completely undermine that safeguard. It would no longer exist and it would no longer be built into the legislation. It would mean that respondents were at risk of public scandal even where the claimant's allegations were completely unfounded or no "protected disclosure" had been made.
Of course, once a tribunal has issued a judgment on the case, that is an entirely different matter. It is right that the judgment should be on the public record. Until that point, there is no way of distinguishing between a well founded, an ill founded and a wholly misconceived claim.
There are also no doubt cases where the claimant might not want the details of the claim to be made public, leaving him or her open to being approached by journalists or suffering other invasions of privacy. That could even deter some individuals from making PIDA claims in the first place, which would clearly undermine the operation of the legislation.
As my noble friend Lord Borrie said, whistleblowing is a very important and special issue, which potentially should have a special arrangement. My noble friends Lady Dean and Lady Turner made essentially the same point. The Government accept that there may be cases where keeping prejudgment details of claims and responses completely confidential could mean that matters of significant public interest were left undisclosed—or even deliberately "covered up", by means of the employer offering the claimant a generous settlement.
It would be quite wrong to assume that in all cases where claims are settled or otherwise withdrawn the parties had reprehensible motives. That could not be a proper inference. As I have made clear, the Government wish to promote the early settlement of individual employment disputes and see this as a positive thing.
However, this supports an argument in favour of some form of independent scrutiny of PIDA claims. That is the special arrangement that has been called for today. The claims and responses perhaps need some 1393 form of independent scrutiny so that, where the circumstances warranted, matters of public concern could be brought to the attention of whichever is the appropriate regulatory body, without being exposed to the public at large at that stage.
As I understand it, that was a suggestion that Public Concern at Work (PCaW) itself first put to the DTI officials at the end of September. I welcome that—novel an idea as it might have been. In the light of that, the Parliamentary Under-Secretary of State responsible for employment relations matters—my honourable friend in the other place, Gerry Sutcliffe MP—wrote to PCaW on 18 October to put forward a formal proposal.
That proposal was that the employment tribunal rules might be amended to require the ETS to send copies of all PIDA claim and response forms to Public Concern at Work, as the leading body, so that PCaW could, if the circumstances warranted, pass those forms or information from them on to an appropriate regulatory body. It appeared to the Minister that PCaW was the absolutely clear cut and pre-eminent charitable organisation with an interest in such matters. It would be ideally placed to fulfil such a role, particularly given that it had been long campaigning for greater public disclosure of information about PIDA cases.
The Minister made it clear that Public Concern at Work would be expected to agree to enter into a deed of confidentiality to the effect that it would disclose the information from the forms no more widely than to the appropriate regulatory bodies. It would also be expected to satisfy itself that such disclosure as it made was consistent with the requirements of the Data Protection Act. That is a distinct, separate, special arrangement by any standards. I suggest that it is a rather brave suggestion to have been made. Absolutely no preference for secrecy is shown in that suggestion.
On 22 October, Public Concern at Work responded to the Minister's offer indicating that it did not feel able to take on such a role. It continued to believe that details of PIDA cases should be placed on the public register and offered to assist in that regard. But, as I have made clear, it is not something to which the Government can agree. We regret that PCaW has not been able to take up what we believe was a sensible and reasonable proposal, but I say tonight that that proposal remains on the table should it reconsider its position at any stage in the future. Otherwise, I am afraid that we must draw a line under the matter.
1394 I do not think that it would be right to say that there are no means of monitoring in any other way. There are effective ways of monitoring the operation of aspects of employment rights legislation. The statistics are published every year and a huge volume of academic research work is carried out on employment tribunal cases. The DTI has a well-developed programme of work, and I know that many noble Lords and others draw upon that work. I understand that officials at the DTI have made it clear to Public Concern at Work that, if it wishes to apply to the ETS for access to case data for bona fide academic research purposes, that application would be treated in the same way as all other applications by academic researchers and considered according to the same criteria. That, I believe, is a pretty open offer by any standards.
I conclude by saying that I hope I have set out why the Government have taken this position and made it clear that when it issues detailed guidance for completing new claims, the ETS will provide the forms to go with it and that there will be no capricious changes. I hope also that I have set out the Government's response to what I know is a contentious issue. As has been observed, it is a matter which has been under discussion for many years now, and I hope that we have reached a point where that discussion can be brought to a conclusion, although I know that it will not satisfy every interested party. However, I finish by reconfirming the offer that has been made and which remains on the table, and which would resolve the issue that has been put to us with such eloquence by my noble friends.
§ Lord Borrie
My Lords, I thank my noble friend for his response. It remains only for me to beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.