Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 34, in page 33, line 10, after 'such', insert 'fixed'.

Mr David Amess (Southend West, Conservative)

With this it will be convenient to take the following amendments: No. 26, in page 33, line 10, after 'period', insert 'not exceeding three months'.

No. 35, in page 33, line 11, at end insert

'or for such extension of such fixed period as the Tribunal may order'.

No. 32, in page 33, line 23, leave out paragraph (a).

No. 33, in page 33, line 28, leave out paragraph (b).

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The amendments seek to do several specific things. Subsection (1) allows the fixing of a time and place for a hearing to be postponed. Amendment No. 34 would insert the concept that such a postponement should be fixed. That is not to say that it should not be subject to later extension but that it should fixed when it is introduced. Employers have expressed concern—although I have no doubt that people on both sides will be concerned—that unscrupulous parties may seek to delay proceedings coming to a tribunal when there is no reason to do so. For that reason, I hope that the Minister will be persuaded by the amendments or tell us that it was always his intention for regulations to provide that a fixed period, rather than a general, indefinite postponement, should be allocated for conciliation. Any attempt to conciliate before reaching a tribunal is obviously positive, and no one would disagree with trying to encourage a conciliated settlement whenever it is possible. The amendment would ensure that postponement for conciliation does not become a mechanism for serial slippage.

Amendment No. 26 would define the fixed period as a period ''not exceeding three months''. The Minister could provide in regulations for the appropriate period allowed for conciliation, or delegate the power to the tribunal or conciliation officer, but the period should not be longer than three months. To avoid the measure becoming a mechanism for slippage in bringing cases to tribunal, we must ensure that the initial period is relatively short. I am open-minded about whether three months is the right period, and I would like to explore with the Minister the concept of imposing a maximum delay limit.

Amendment No. 35 would allow for an extension of the fixed period if the tribunal orders it. We are working somewhat in the dark, because we do not know what the regulations will propose. Will the tribunal decide to postpone the hearing for conciliation—hopefully for a fixed period—or will there be a general presumption of a period of postponement? In framing the amendment, we did not know whether the decision to grant a postponement extension would return to the tribunal or whether the tribunal would be involved actively for the first time in granting a fixed and generally applied extension. Perhaps the Minister will tell us how the regulations will work.

To summarise, the amendments provide that the period of postponement for conciliation is fixed, short and can be extended only with reference to the tribunal.

Amendments Nos. 32 and 34 deal with a slightly different point. Amendment No. 32 would leave out subsection (3)(a), which gives the Minister the power to provide for exceptions to the general rule that the conciliation officer should be sent notice of tribunal proceedings. It is a probing amendment. I am not suggesting that cases should not be excepted from that general rule, but it is important that we understand what the Minister has in mind as exceptions and that he makes a case for discriminating against or in favour of—whichever way we consider it—a certain class of cases.

Amendment No. 33 would leave out paragraph (b). Those hon. Members who have been involved in Committee work with me in the past, of whom I count you as one, Mr. Amess, know that I am not entirely disinterested in semantics. Paragraph (b) seems to deal with a very semantic point, and I cannot understand what it is designed to achieve. The Employment Tribunals Act 1996 requires parties to be notified

''that the services of a conciliation officer are available to them''.

For those words, paragraph (b) substitutes

''of the availability to them of the services of a conciliation officer''.

I pored over that provision with my finest-toothed comb, seeking to establish the substantive difference that it will make, on which Parliament's time is being spent. However, I came to the conclusion that it will not make one iota of difference to the operation of the 1996 Act.

It was impressed on me early in my parliamentary career that the first principle of drafting legislation is economy. We must never do anything that does not need to be done and we should not use three words where two will do—I must admit that I do not always apply that rule to my speeches.

Mr Rob Marris (Wolverhampton South West, Labour)

The hon. Gentleman said that he was not disinterested in semantics. Did he mean that he was not uninterested in semantics?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am grateful for that intervention and I look forward to serving with the hon. Gentleman on many Committees. I can see that he and I have a great deal in common and I shall go away and ponder on his point.

To be serious, I ask myself whether I have missed something about paragraph (b). It appears to do nothing at all and therefore offends the principle of economy in legislation. If the paragraph does do something, I have not noticed what that is, and I should be grateful if the Minister would explain it to me.

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

I fully agree with the intentions behind the first three amendments. Incidentally, to be semantic, there is an error in amendment No. 26. I think that it should be aimed at amending line 10, not line 16.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The amendment was correct when it was tabled, but it was published with an error on the original Notice Paper. That was subsequently corrected, so the Minister must have a copy of the original one.

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

It serves me right for being semantic.

The first three amendments would ensure that the conciliation period was reasonably brief and did not hold up unduly the progress of tribunal claims where a settlement was not reached and they went on to a hearing. I agree that a conciliation period longer than three months is too long and I fully intend to ensure that the normal period is shorter than that. ACAS shares that view. I agree with the hon. Gentleman that it would be sensible to set in legislation a maximum length of three months, but the proper place in which to do that is in regulations, not in the Bill. There is no disagreement on the principles.

I can assure the hon. Gentleman that the period for conciliation is intended to be fixed. It may be helpful if I explain how we intend that period to operate. Its purpose is to encourage parties to think seriously about whether they are willing to settle their claim and to do that thinking earlier in the process than they do now. We are plagued by last-minute settlements on the steps or at the door of employment tribunal hearings, and there is a significant waste of tribunal time and a substantial delay to other claims. Tribunal proceedings and participants will benefit greatly if two thirds of the claims that are settled or withdrawn between conciliation and the hearing are dealt with in a timely manner. There will be a fixed period, which we agree should not be longer than three months. The normal period will be much shorter; the general view of ACAS is that it should be six weeks. The hon. Gentleman is nodding.

During the fixed period, ACAS will approach both parties and encourage them to engage in conciliation. They are not obliged to engage in that process—conciliation is not compulsory—but it is right that they should be asked to pause for thought and that the tribunal should not normally progress their case until the period has ended. Currently, while the parties are merrily discussing the case in conciliation, they receive notice of an employment tribunal with a set date, and their minds turn inevitably to their day in court rather than to the conciliation. If the parties have not reached a settlement by the end of the fixed period, the case will be listed for a hearing. So conciliation is got out of the way before the date is set for the hearing, which is not what happens at the moment. However, if ACAS considers a settlement to be imminent, there will be provision for a limited extension to complete its work.

The hon. Member for Runnymede and Weybridge is right that an extension cannot be used and abused to avoid an eventual tribunal hearing. Parties may, of course, choose to settle their claim later, but at that point it will be for ACAS to choose whether to become involved. Claims may be settled through compromise agreements as an alternative to an ACAS conciliated settlement.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Will the Minister clarify whether the extension to the period will be determined, or at least rubber-stamped, by the tribunal, or whether the power to do that will be delegated to ACAS?

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

ACAS would need to decide whether a settlement is imminent, as it is part of the conciliation process and can give a good and independent judgment about whether an extension is likely to lead to a conciliated settlement. So the onus will be on ACAS.

Let us deal first with the points about conciliation and fixed periods. Amendment No. 35 would provide for extensions to the fixed period. As I explained, I agree that there should be provision for carefully controlled extensions where ACAS believes that a settlement is imminent, and the provision will be in the regulations. The aim of the amendments is laudable, but they are not necessary, and I invite the hon. Gentleman to withdraw them.

Amendments Nos. 32 and 33 would remove two proposed amendments to section 18 of the Employment Tribunals Act 1996. Amendment No. 32 is probing. Subsection (3)(a) will allow the regulations to provide that the employment tribunal service need not send an application form to ACAS unless the respondent has completed an IT3 response form giving notice of appearance. Under section 19A of the 1996 Act, all application forms must be sent to ACAS once the tribunal service has received them. If a respondent fails to enter a notice of appearance, it seems entirely reasonable that ACAS should avoid wasting its resources on fruitlessly trying to engage in conciliation with a party who will not co-operate. So if the IT1 application has been submitted but the IT3 response form has not been received, the employment tribunal must, under current law, send the notice of appearance to the respondent.

That is a tidying-up amendment. On subsection (3)(b), the hon. Gentleman has provided us with a real challenge: to explain what subsection (3)(b) is for. It is supposed to reflect the following change. ACAS will have a duty to conciliate during the specified period. Outside that period, in which it currently has a duty to continue to conciliate, it will have a power to do so. ACAS can make it clear that parties should not hang about until the end of the process, and accordingly encourage them to get moving and find a solution. If the parties pass that date, ACAS has no duty to remain and can threaten to walk away. ACAS has the power to continue if it thinks the process will benefit from an extension.

The hon. Gentleman raised a reasonable point, which I raised earlier, about the wording. Currently, an ACAS officer has a duty to conciliate if both parties request it, or if he has a reasonable prospect of success. At the end of the fixed period, the duty to conciliate is to be converted into a power to conciliate.

The changes made to section 19(b) of the Employment Tribunals Act 1996 by subsection 3(b) reflect that change in the ACAS officer's duty. The regulations must provide for the notification of parties about the availability of a conciliation officer's services, rather than saying that parties must be notified that an officer is available. After that clarification, I hope that the hon. Gentleman will withdraw these two amendments and the first three.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I shall deal with the last point first, because it is crystal clear in everyone's mind. The Minister has lost me because subsection 3(b) deletes

''that the services of a conciliation officer are available to them'',

and substitutes

''of the availability to them of the services of a conciliation officer''.

To me, that does nothing substantive. It certainly does not address the issue mentioned by the Minister, which is the change from duty to a power to conciliate.

I am unpersuaded that the provisions of subsection 3(b) do what the Minister says that they do. They seem to change the wording for the sake of it. I am not terribly upset about that, but it is a waste of everyone's time to change the grammatical construction of sentences that have no substance. The Minister may say more on that in a moment.

Mr George Osborne (Tatton, Conservative)

Perhaps I can help. Is it something to do with the propensity of new Labour to confuse words with substance and action?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

That is the well-known gap between its rhetoric and reality. My hon. Friend could be on to a rich vein here, and if we had more time we might mine it for an hour or so. However, given the disgraceful constraints imposed by the Government on the Committee's considerations, it may be better if we move on. I recognise the Minister's argument about duty and power to conciliate. My impression was that that related to another provision.

On amendment No. 32—I shall continue going backwards—the Minister seemed to say that the only exception he will make is in a case where the respondent has not sent the requisite form. In such cases, there is no point in mandating a conciliation period. I have no problem with that, but why is it not possible to add

''except in cases where the respondent has not acknowledged receipt of service'',

rather than say

''except in such circumstances that the regulations may provide'',

which would leave it wide open for Ministers, now or in the future, to exclude whole classes of applications from the conciliation procedure.

I thank the Minister for confirming that the Government intend to introduce through regulations—sub-optimal, but it gets there in the end—the substantive points at which amendments Nos. 34, 26 and 35 drive. I am slightly disappointed that the tribunal will not be involved in the granting of extensions and that that power will be wholly delegated to the Advisory, Conciliation and Arbitration Service. ACAS is an under-resourced service and will have substantial additional burdens placed on it by the Bill. I suspect that, more often than not, extensions will be granted not because of the likelihood of imminent results from conciliation, but because a lack of resources means that conciliation has not even started as the end of the initial period looms. It is no good for the Minister to bang the table and say that six weeks is the normal period and three months the maximum if there are too many cases to conciliate and too few officers to work on them.

I would have preferred reference to be made to the tribunal, so that there could have been a public forum in which we could see when cases were brought back for extensions of the conciliation period. That would have meant that any failure to resource properly the conciliation process would have rung a public alarm bell. We will discuss later the resourcing of ACAS and the needs that will arise. The Minister dealt with the substance of the first three amendments in the group, if not the last two. Unless he has something helpful to say—I see that he helpfully indicates that he does not—I will withdraw the amendments and invite my noble Friends to pursue the arcane language of subsection (3)(b) when the Bill reaches the other place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 38, in page 33, line 21, at end insert—

'(2A) In section 18 of the Act (conciliation) after subsection (7) there is inserted

''(7A) Notwithstanding the provisions of subsection (7) above, where the conciliation officer believes that any party to a conciliation procedure has behaved in a manner which ought to be conveyed to the Tribunal, he may make a report in writing of such matter to the Tribunal and the Tribunal shall take account of any such reported behaviour in making any order under section 13 above.''.'.

This is a much more substantive point, and we have already touched on the arguments earlier this afternoon. The amendment would insert a new subsection after section 18(7) of the Employment Tribunals Act 1996. Subsection (7) specifies that anything communicated to a conciliation officer must remain confidential unless the person who communicated it allows its release. Clause 24 introduces conciliation as a critical part of the procedure that deals with cases that can come to a tribunal. The Minister is sticking to the use of vexatious, unreasonable and so on as the qualifying definition for cases in which costs or preparation time compensation might be awarded. It is self-evident that a party's approach to the conciliation procedure should also be a major factor in reaching an informed decision about whether that party has behaved reasonably.

The Minister is rightly introducing a requirement to go into a period of conciliation. Let us consider a situation in which a party enters that conciliation process with the clear view that it is engaged in only a pro forma exercise. It shows no intention of negotiating or listening to the conciliation officer, and ignores any advice to either party that the case is unsustainable and the parties should reach a compromise. The party demands his day in the tribunal. Such conduct should be taken into account by the tribunal in determining whether it is reasonable to award costs, because it is vexatious and unreasonable within the overall process that the Minister describes.

The conciliation officer should report routinely to the tribunal on the conciliation procedure, or at his discretion, if he believes that the tribunal should take account of the conduct of either party in reaching its decision. However, as the law stands at present, he is constrained from making the conduct of the parties known to the tribunal because of the effect of section 18(7) of the Employment Tribunals Act 1996.

The Minister is committed to the principle of confidentiality; he thinks that the ability that parties have to speak in confidence to a conciliation officer will help in achieving a conciliated settlement. The argument is persuasive for the substance of what is said. People are tempted to divulge information to the conciliation officer that they would not want repeated in the open tribunal. However, I do not see why that should prevent the conciliation officer from reporting to the tribunal the fact that one party or the other had been obstructive or had approached the conciliation process with no intention of genuinely participating in the attempt to reach a settlement. Given the Minister's overall agenda, it is essential that he address the point. It must be made clear to both parties that, if they do not seriously engage in the conciliation process, their conduct—or misconduct—may count against them when the tribunal considers whether costs or expenses should be awarded.

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

We discussed that fundamental point this morning. The amendment could have serious consequences that the hon. Gentleman does not intend. It would undermine rather than enhance conciliation. The hon. Gentleman suggests that the conciliation officer should make an assessment of the merits of a tribunal application. More importantly, he suggests that if such an assessment showed that the case had no reasonable prospect of success, the conciliation officer should communicate that to the relevant party and to the employment tribunal, so that the tribunal could take it into consideration when deciding if it wished to make a cost award.

The hon. Gentleman's suggestion has the potential to undermine ACAS seriously and considerably. He said that he accepts that ACAS could play an important role; the point is that ACAS does play an important role. It accounts for settlements in 38 per cent. of employment tribunal claims, and it has an enormous effect on the 37 per cent. of cases that are withdrawn. Put simply, if ACAS conciliators were involved in assessing a case and reporting its findings to the tribunal, key features of conciliation—not just confidentiality but impartiality—would be severely undermined.

Conciliation officers can and do discuss the merits of the case with the parties. They outline its strengths and weaknesses and play devil's advocate. That is an important part of their role and is key to ensuring that the applicants and respondents consider the merits of their case. It is safe to assume that both parties consider such comments when deciding to settle or withdraw the case. They have listened to the conciliation officer going through the confidential, impartial process, which is a crucial part of conciliation.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister describes a case in which both the applicant and the respondent behave reasonably. They listen to the conciliation officer and what he says informs their decisions about how to behave. However, the hon. Gentleman did not address the situation that I had in mind when drafting the amendment, that of an unreasonable applicant or respondent who does not listen or genuinely engage in the conciliation process. How would the Minister deal with someone whose conduct showed that he had no genuine intention to seek a settlement?

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

I have spoken to the conciliators, who do a skilled job. Many applicants or respondents who enter the conciliation process with the frame of mind that the hon. Gentleman describes—he is right to say that some are completely unreasonable and it wastes everyone's time—end up being persuaded to accept a conciliated settlement. If they do not, the conciliators would have to say, ''If you put us in a position where we are part of the judicial process, albeit on the grounds of behaviour, we will have to make a report to the tribunal.'' They should not become part of the judicial process as that would weaken and question their impartiality. That is an important change in their role. People who do the job believe that it would have a profoundly damaging effect. I agree with ACAS that impartiality and confidentiality are crucial to its enormous success; about 75 per cent. of cases are withdrawn or conciliated.

The proposal would have an adverse impact on the behaviour of the parties involved; if a potential outcome of conciliation could be a report to the tribunal it would undermine open and honest discussion, which is the key to settling cases.

For those reasons, I ask the hon. Gentleman to withdraw the amendment. I sympathise with any attempt to promote conciliation but I am anxious that in attempting to deal with a particular problem, the amendment runs the risk of creating a new set of problems. As we need ACAS to take an even more important role, it would simply undermine that process. If the hon. Gentleman does not ask leave to withdraw the amendment, the Committee should oppose it.

Mr Rob Marris (Wolverhampton South West, Labour)

In terms of confidentiality, the cure proposed by the amendment is worse than the disease. The word ''behaved'' reminds me of an episode of ''Not the Nine O'Clock News'' in which someone was nicked by a police officer for smiling aggressively, which I thought was quite funny until a couple of years ago, when that happened to someone in south London.

''Behaved'' is a loaded word and ACAS officers are not psychiatrists. Faced with the proposed subsection, if I were still practising law and acting for an applicant, I would advise my client to have nothing to do with ACAS and take the right to silence, because all that ACAS officer could do in that case would be to say, ''I am going to write to the tribunal saying that you behaved badly because you wouldn't talk to me.'' That would be fine; I would tell my client to go right ahead, because the alternative would be that my client might speak to ACAS and, as it were, hang himself. He would have a bad mark against him at the tribunal from the ACAS officer's report. As a non-practising solicitor, Mr. Amess, you might expect me to say it, but confidentiality is absolutely crucial to the negotiations and conciliations and the amendment would dilute it in an unhelpful way.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I do not agree with the argument advanced by the Minister or by the hon. Member for Wolverhampton, South-West. We must distinguish between confidentiality in substance and it being able to cloak procedure and one's approach to the procedure. The hon. Gentleman does not like the word ''behave'' and I accept that the drafting of the amendment is not perfect. Clause 22 uses the phrase ''conduct of the proceedings'', so I think that a conciliation officer could report that one or both parties had conducted themselves in a way that was not conducive to serious attempts at conciliation.

I raise the issue—this builds on what we discussed in the last few debates—because there is a provision for the award of costs, which is an important safeguard for respondents. By definition, respondents do not initiate action; they are forced to defend themselves against an action initiated by someone else. The provision enabling respondents to recover costs in an unreasonable or vexatious tribunal case against which they have had to defend themselves is an important part of creating an equitable system.

With the introduction of conciliation to the process, the definition of unreasonableness should include what happens in the conciliation part of the process. After all, we are talking about an application and then a postponement for a fixed period for conciliation to take place. The conciliation period is within the overall time frame of the tribunal proceedings, so it would be fair and reasonable to consider it as part of those proceedings when it comes to the question of a party's unreasonable or vexatious conduct.

The Minister is making a bit of a mountain out of a molehill in saying that my proposal would fundamentally undermine the conciliation process. I am not suggesting that the substance of the case or the details of what happened previously that are explained to the conciliation officer should be relayed to the tribunal. To ensure equity in the tribunal's decision about awarding costs, I am suggesting merely that the officer should have the power, when he feels it necessary, to convey to the tribunal a succinct phrase relating to the conduct of one or both parties during the conciliation phase. I am disappointed that the Minister does not accept my argument.

Mr Rob Marris (Wolverhampton South West, Labour)

Has the hon. Gentleman considered whether clause 28, on pre-hearing reviews, deals with some of his points? Let us suppose that a respondent telephones ACAS to ask what is going on with a case, but the officer there says, ''I'm sorry, but I can't do anything. The applicant's not prepared to talk and says he'll see you in court.'' In those circumstances, the respondent could apply for a pre-hearing review, at which he could say, ''When I contacted ACAS, I was told that the applicant was not interested in talking at all. That is totally unreasonable, and this application should be kicked into touch.''

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

We shall discuss clause 28 in a moment. I am not sure whether such a case could be subject to a pre-hearing review, given that the respondent would be unlikely to agree to it, because by definition he was not playing ball. We shall explore how those reviews will work when we reach that clause. To ensure that we get there, we had better not prolong debate any further on this clause.

As I said, I am disappointed. The amendment was a genuine attempt to explore whether there was a need to consider behaviour during the conciliation period as well as in the tribunal forum. The Minister has not made a convincing case why it is not needed. Because of the pressure of time, I shall withdraw the amendment, but he has not satisfied me on this point. He has the drop on me in that I have not talked to ACAS about the proposal, but I intend to do so before Report. If it is appropriate, I shall raise the matter again at that stage.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 36, in page 33, line 35, at end add

'', and

(d) after paragraph (c) add—

'(d) provisions securing that the parties to proceedings have timely access to all documents necessary to facilitate conciliation'.''

Amendment No. 36 would allow for something akin to discovery at the conciliation stage. A briefing from the Legal Action Group makes the following good point.

''A fixed period for conciliation is inappropriate unless tribunals manage cases so as to ensure that early disclosure of evidence takes place.''

It would be inappropriate to put

''pressure on parties to settle without full knowledge of the facts of the case'',

as it is ''not conducive to justice.''

I am not a lawyer so I may have phrased my amendment imperfectly. People who understand better how the discovery process works in tribunal cases could make a better stab at it.

I want to probe the Minister on the extent to which he intends parties to reveal their cases at the conciliation stage. Common sense tells me that the more that is revealed of a case, the more likely will be a conciliated settlement. However, it may be wrong to reveal a case too soon if it is to be tested in a tribunal. People should not be put into a dark room to conduct the conciliation process, only to become aware of the full details of the other party's case when—having failed to reach a settlement—they emerge into the blazing light. Will the Minister explain how he will ensure that that does not occur?

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

The hon. Gentleman proposes that parties should receive relevant documents in good time to help effective conciliation, which goes to the heart of voluntarily conciliation. Currently, the secretary of the Office of Employment Tribunals ensures that copies of applications and notices of appearances are sent to the person making a claim, the person responding and an ACAS conciliation officer. A party who requires further details may request them from the other party. If those are not forthcoming, a party can approach the tribunal, which can order that the information is provided.

Extra information gathered in the way suggested by the amendment could be useful to parties considering a conciliated settlement. However, a mandatory requirement does not sit well in a voluntary process.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I accept what the Minister says. Should that process occur before the conciliation period, or afterwards? Common sense tells me that it would be helpful if it happened at the beginning.

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

The hon. Gentleman is right: it would be helpful. We are not suggesting compulsory conciliation, and neither are Opposition Members. That would be a mistake and we have heard many arguments against it. We did not make it a proposal, but it was covered in ''Routes to Resolution''.

We must encourage people to engage in voluntary conciliation. The amendment could result in parties concentrating on the legalistic process of obtaining information via the tribunal rather than reaching a settlement. Our proposals do not prevent parties from seeking further information voluntarily or through the tribunal. Our proposals on mandatory application forms and responses could go a long way to achieving the aim of the amendment. We expect that by prescribing the information that is required, we will gather much of the information that the amendment seeks to make available to the parties. That will complement the role that ACAS conciliation officers currently perform to clarify the issues for parties as they consider reaching a settlement.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

If I understand the Minister, nothing would prevent either party from approaching the tribunal at any time during the process to seek the tribunal's order to the other party to disclose information. That would effectively secure that timely access to documents that the tribunal believes necessary for the conciliation process. If the Minister will confirm that, I will be delighted to withdraw the amendment.

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

I can confirm that.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 37, in page 33, line 35, at end add—

'(4) The Secretary of State shall within 90 days of this section coming into force, prepare and publish an assessment of the additional resources required by the Advisory, Conciliation and Arbitration Service to facilitate the conciliation process as provided for in this section'.

External bodies on both sides of industry have expressed concern about the resources available to ACAS. The regulations will give ACAS a greatly increased role. Conciliation is a laudable objective, but we all agree that there must be a time limit. The worst scenario is that we write into legislation a requirement for a conciliation period. That would, in effect, be tokenism, and one can imagine someone from ACAS talking to someone on the telephone for five minutes, because that is all that the available resources will allow. It is generally agreed that ACAS services are stretched, even though the number of days lost through disputes might lead us to believe that demand is low.

I am concerned that the Government are, if not imposing, greatly encouraging the use of conciliation by writing it into the statutory procedure, without giving ACAS adequate resources to provide the service necessary if conciliation is to work. The amendment would place on the Secretary of State a duty to assess the requirements of ACAS in the light of the new legislation and to publish the results of that assessment. That would put the Minister on the spot to provide the resources to make effective the system that he and his Government have invented.

If the issue is not addressed, conciliation could easily become an empty box—a delaying process—in the tribunal system, and would not have a fair chance of working and demonstrating its ability to reduce the number of cases that reach tribunals, simply because there are no conciliation officers. All hon. Members will have come across child protection cases in their constituencies in which a social worker was assigned to a child who had never seen them before or who last saw them two or three years before.

The bureaucratic process of providing resources and input is not the same as the mechanism of delivering adequate resources to ensure that the opportunity that the legislation seeks to provide is properly exploited by all parties to maximum effect. The amendment would ensure that the Minister had to make a public assessment of what was really needed.

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

There is very little between the hon. Gentleman and me. I hope that he will withdraw his amendment, but it is important to say a few words about ACAS. We have made proposals for changes to conciliation in full consultation with ACAS. The hon. Gentleman is right that there are resource implications. They would be the subject of ongoing discussions between my Department and ACAS. In addition to those usual channels, we have set up the employment tribunal system taskforce to look at the employment tribunal system as a whole, which obviously includes ACAS conciliation. The Government also said that

''the Taskforce may wish to consider the operational aspects of implementing proposals set out in the 'Routes to Resolution' consultation paper''

which go beyond the scope of the clause.

The proposals include the introduction of the minimum dispute resolution procedures, which the Committee will soon debate and which are predicted to have a considerable impact on ACAS's case load. ACAS also plans to step up its advisory role, such as the seminars that it runs for small businesses. There is a real sea change at ACAS. It now has a chief executive as well as a chair and is moving into new areas with great enthusiasm under Rita Donaghy's expert chairmanship. Significant extra resources have been found for the employment tribunal service and ACAS. The ETS's allocation has just been increased by more than £2 million this year, by £7.5 million next year and £10 million the year after. We also plan to provide ACAS with significant extra resources to cope with case load increases and the cost of introducing new pay systems.

ACAS already puts considerable effort into conciliating cases, but there is no fixed period for conciliation. It can drift on for long periods. A fixed period of conciliation would give ACAS less choice of when to deploy its resources, but it should allow ACAS greater scope to plan the use of those resources. The Government do not accept that extra resources will necessarily be needed. The operational detail of the proposals will need to be fully worked out before their impact on resources can be assessed.

Requiring the Secretary of State to prepare and publish an assessment of the additional resources required by ACAS, as the amendment seeks to do, is not likely to be helpful. I have explained that this is one of a number of proposals impacting on ACAS. We hope to use the fixed period of conciliation to change the behaviour of parties to employment tribunal claims. The extent to which that aim has been successful is unlikely to be clear within 90 days of the law coming into force. I hope on that basis that the hon. Gentleman will withdraw the amendment, which is unnecessary. Its aims are laudable but they would not be achieved. Many of the points that have been made about ACAS are entirely relevant, and we will address them in the course of putting this Bill into effect.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I hoped that some Labour Members might have said something about this matter. It might have been those who are not here today.

Mr Ian Pearson (Assistant Whip (funded by HM Treasury); Dudley South, Labour)

It is a stupid amendment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Perhaps when the hon. Gentleman is a Minister he will be in a position to say that it was a stupid amendment, but the Minister did not say that. It may be that 90 days is not the right period, but the Minister seems to recognise that there are resource implications. However, it is unlikely to be helpful for the Secretary of State to have to identify them as the resource requirement identified will doubtless be substantially in excess of the resource available. It is likely to be very unhelpful because it will mean that Ministers will have egg on their faces.

In general it is good to have assessments of the resources required as a result of legislation made public so that people can see whether the resources have followed the rhetoric of the legislation and that there is something there to back up the legislation in practice. I take the Minister's point about 90 days. Perhaps a more sensible suggestion would have been six or 12 months.

However, the Minister will not concede anything, other than acknowledging that more resources may be needed, and he does not even admit that that is necessarily the case. Essentially, the matter will be dealt with at Ministers' discretion behind closed doors, which is not what I would have liked. Given the time, I will withdraw the amendment and see if the issue can be tackled in another way at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.