Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 40, in page 34, line 7, after 'hearing', insert

'where both parties agree to such a determination'.

The amendment would provide that determination without a hearing can take place only if both parties agree. There is no substantial difference. The explanatory notes say that the Government have that circumstance in mind for allowing determination without a hearing and, perhaps more tellingly, the Trades Union Congress brief also states that categorically.

The clause as drafted is too wide. Henry VIII would be turning in his grave, because it provides for the Government to determine, by means of regulations, that any proceedings can be dispatched without a hearing in circumstances that the regulations may prescribe. I am stretching the point, but there is nothing to stop the Government from drafting those regulations to prescribe circumstances so wide and all-encompassing that they virtually do away with tribunals. I am sure that is not the Government's purpose, but as a matter of principle, if there are narrow circumstances in which the normal procedure will be done away with, it would be appropriate to include those circumstances in the Bill.

Clause 26 would write that into the 1996 Act by saying that tribunals may authorise determination without a hearing in circumstances where both the parties agree. That is the substance of the Government's position; why do they not include it in primary legislation to ensure that a Government now, or in the future, cannot remove classes of proceedings by defining new circumstances in which they could be dispatched, perhaps without the agreement of both parties and without a hearing?

Mr Rob Marris (Wolverhampton South West, Labour)

I rise to oppose the amendment. I see where the hon. Gentleman is coming from but the difficulty is that the proposal would tie in a situation in which an applicant or a respondent did a runner. The hon. Gentleman's fear is that the Government could arrogate too much power to themselves in regulations; the Human Rights Act 1998 can guard against that, but applicants and respondents can disappear and the tribunal would need the agreement of both parties.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The hon. Gentleman makes an excellent point and raises a circumstance that I had not envisaged. However, he does not address the substance of my argument that the Government made it clear in the explanatory notes that the regulations will, in practice, prescribe as the sole circumstance a situation in which both parties agree. The regulations that the Government have mind would not deal with a case in which one party had done a runner. That would have to be dealt with under section 28 of the pre-hearing review.

Mr Rob Marris (Wolverhampton South West, Labour)

I leave it to the Minister to explain that.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I disagree with the hon. Member for Runnymede and Weybridge. I knew that Henry VIII was bound to make an appearance in our proceedings.

For the excellent reasons given by my hon. Friend the Member for Wolverhampton, South-West, the measures are more appropriate for regulation than the Bill. The hon. Member for Runnymede and Weybridge wants the Bill to include a requirement that both parties agree before the dispute may be determined without a hearing, and I shall explain what the Government intend to do.

We intend that written consent will have to be received from both parties before a determination without a hearing can go ahead. The detail of the circumstances is more appropriately set out in regulations than in primary legislation. One of the requirements will be that the parties both agree, although that should not be permitted where a party subsequently seeks to withdraw consent for purely technical reasons. However, the regulations will further provide that any such consent should be informed; parties will have to seek advice on the consequences of consenting and regulations will specify those who may provide such advice, such as ACAS officers and independent advisers who may advise on compromise agreements.

An additional requirement will be that the tribunal itself agrees that the case is suitable for determination without a hearing, but it may not. The tribunal may decide that it is in the public interest for it to override the parties' consent if it considers that it needs to hear the parties before it is able to reach a decision or if the case raises issues of such public importance that there should be a hearing in public. The only exception to the requirement for both parties to give written consent will be where a case is uncontested. In such cases, the respondent will not have to consent to a written determination without a hearing if they have failed to take advantage of the opportunity to defend the case and have ''done a runner'', to use my hon. Friend's charming Wolverhampton phrase.

The Government resist the amendment, and I ask the hon. Gentleman to withdraw it.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am fascinated that in all the Minister's long and varied experience, he has not come across the expression ''done a runner'' anywhere in the country except Wolverhampton.

Mr Mark Prisk (Hertford & Stortford, Conservative)

He has led a sheltered life.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Indeed.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I have been in this Room.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister says that he has been in this Room, but as he will have observed today, one picks up all sorts of useful expressions when stuck in this Room for a day or two.

What the Minister said was interesting. It is a pity that he did not put it in the explanatory notes, which on clause 36 clearly state:

''It is intended that the circumstances in which a case may be determined in this way would be where both parties have given their consent, by signing a form waiving their rights to an oral public hearing, following independent advice.''

The Minister has conveyed a new piece of information by telling us that there is another set of circumstances. I am not suggesting that that is the thin end of the wedge and that it could lead to the abolition of all tribunals, but the Minister must recognise the logic that the proposal gives the Government total discretion. If the Minister has slightly broadened the finely defined scope of the circumstances that will be defined in regulations, my amendment will have achieved its aim.

I am glad that I tabled the amendment because, without it, I would not have discovered that the Minister intended to address the point raised by the hon. Member for Wolverhampton, South-West about the situation in which the applicant or the respondent has, in the phrase that will become synonymous with the Bill, ''done a runner''.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Pearson.]

Adjourned accordingly at three minutes to Seven o'clock till Thursday 13 December at half-past Nine o'clock.