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Open Justice, Closed Government

October 2000

PUBLIC INTEREST: OPEN JUSTICE, CLOSED GOVERNMENT

In R v Secretary for Central Office of Employment Tribunals ex parte Public Concern at Work (CO/191/00, 19April 2000) Jackson J ordered that this institute should be given access to a summary or copy of claims brought under the Public Interest Disclosure Act 1998 (PIDA). We sought the information so we could monitor the legislation we had promoted.

While the ruling was based on provisions in the Employment Tribunals Act 1996 and regulations thereunder on the Register, the Court also considered the wider issues at stake, including the public interest. On this point, Jackson J concluded, inter alia, that

• It is sometimes embarrassing for a party to an employment tribunals to have certain details of his claim made public. On the other hand, claimants in the courts suffer similar embarrassment. That is part of the price which all citizens pay, in order to have the benefits of an open system of justice.
• It has always been the policy of the law that, so far as possible, litigation should be conducted under the public gaze and the critical scrutiny of all who wish to report legal proceedings
• The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings.

The Government has decided not to appeal but to change the regulations. The DTI minister advised us they were considering this on 25 July and we wrote the following day registering our concern and asking for a draft of the regulations and list of consultees. It transpires that the regulations had already been made on 24 July, were laid before Parliament on 26 and came into force on August 14. The regulations now provide that the Register will detail the names and addresses of the parties to all ET claims but not a summary or copy of the IT1.

Last year the President of the ETS, HH Judge Prophet, had urged us not to pursue the matter because a more open Register "could be accessed by unregulated consultants acting for employers." Business interests had expressed concerns that any changes in access to the Register should not facilitate or encourage the work of ‘ambulance chasers.’ On this issue, it is important to note that Jackson J’s decision did not state that we were entitled to the addresses of the parties. As such, his decision had done much to allay these concerns.

This new provision to make available the addresses of the parties is surprising - as is the fact that the Government should introduce such a change without consulting business or other interests. Similar regulations make the same changes to the Scottish Register, though this has for some time - under the existing statutory provisions - provided the Respondent’s address in all ET claims. In such circumstances, one would have expected the Government to ask interested parties whether the Scottish practice had caused any problems.

The impression this episode creates is that the Government has gone behind people’s backs to change the law during a parliamentary recess to deny them a right to information. That the DTI did not have time to consult on the issue during the previous four months, suggests that one key factor was administrative convenience. While we hope other factors were considered in formulating the new policy, it is not clear that due weight was given to the High Court’s assessment of the public interest.

The way that the DTI has conducted itself on this issue suggests they could learn a lot from the open and fair way in which courts and tribunals seek to address and resolve conflicting interests. Even if their approach has undermined your confidence in the conduct of its forthcoming review of tribunal procedures, we do urge you to contribute to it. With so much litigation and so many laws in the employment field today, the current rules now need an overhaul. Whether or not the Government actually wants your help, this episode suggests they may need it.

NEW TRIBUNAL RULES - LISTEN TO THE DTI

Though rarely catching up with the evolving nature of employment, employment laws have changed radically in their volume, scope, detail and effect over the last thirty years. Yet tribunal procedures have remained largely untouched. This needs to be addressed because - as the Woolf reforms recognised - procedures are the means by which rights can become remedies.

While most recent changes in employment law have focussed on substantive rights and the creation of new remedies, the public and practitioners know there is a genuine concern about how these laws work in practice. Do they give too much leverage to an unmeritorious employee? How practical is it to enforce the many lesser breaches of the unscrupulous employer? Could ACAS’s help be used earlier or to better effect? Does the system offer value for money?

For these reasons the forthcoming review of ET rules is to be welcomed. However recent experience suggests it may prove a lost opportunity if it is to be an internal DTI review. In the last bulletin, the Platform piece looked at the implications of April’s High Court decision that the public had a right to know of the gist of claims being brought in employment tribunals. While the decision rested on statutory construction, the court found for the applicant (the whistleblowing charity, Public Concern at Work [PCaW]) on seven grounds, including the wider policy issues and the public interest in open justice.

On 25 July the DTI Minister told PCaW that he was considering withdrawing the appeal against the decision and introducing holding regulations, pending the review of ET rules. These holding regulations would remove the public’s right to know the gist of the claim but would provide them with the name and addresses of the parties. PCaW registered its concerns at this holding position and - aware that the provision of addresses had been a particular concern to both the CBI and the President of the ETS - asked to be provided a draft of any regulations and a list of consultees.

It subsequently transpired that the regulations had been made the day before the Minister met PCaW and were laid the day after, just as Parliament went into recess. They came into force on 17 August. No consultation took place with the CBI, ELA or other groups and no public announcement was made. The notes to the draft regulations give no hint as to their purpose or effect and make no reference to the High Court decision.

When PCaW objected to this, the Minister replied that he had carefully considered the issues. Making no reference to the High Court’s reasoning, he gave three grounds for his decision. The first was factually wrong, the second was legally wrong and the third - that openness would thwart settlements - ignored all the experience of the higher courts. On 11 September, PCaW pointed out that had there been consultation on the issue these errors would have been pointed out and an informed decision might have been made. Concerned that a DTI internal review might assume that the recent ‘carefully considered’ decision of the Minister was not for changing, PCaW asked for three assurances. These were that the consultation would set out the High Court’s reasons and would be impartial and that the review would address the issue on its merits. While these were eventually given, no consultation has taken place and the DTI has announced its proposed changes to ET rules without mentioning this issue.

While some may agree with the DTI that this issue is ‘a small administrative detail’, the fact is that - as always - the devil is in the detail. That Robert Maxwell’s misuse of pension funds was documented in an ET application long before the massive fraud demonstrates that the implications of this particular detail can be far-reaching. Listening to the DTI, it seems that we all have a job on our hands if the review is to consider such points.