The
Solicitor-General: It is a cause of real regret that the
hon. Gentleman wants to refer to Baroness Thatcher—the most
abysmal, right-wing leader that this country has ever had, in any
political party. She retarded the cause of feminine advance by years.
He is clearly very ready to attach himself to her
heritage. What
changes in the Tory party? Nothing whatever. We all know what to expect
if the Tories get into power, and the more the hon. Gentleman talks,
the less likely that becomes. It is extraordinary to say that he does
not know how many women Baroness Thatcher had in her Cabinet because he
was too young to know. I know how many women there were in Pitt the
Younger’s and I was not born in 1790. I think he wanted to avoid
the very pertinent and pointed question asked by my hon. Friend the
Member for Islington, South and Finsbury. No talk of reasoned
amendments takes away from the fact—totally obvious to the many
thousands of stakeholders who support the Bill—that the Tory
party voted against it on Second Reading. It wishes no advance in
equality at
all. Which
Tory party members complained to the Equality and Human Rights
Commission to get it galvanised into action against the BNP? Did we
hear from the Tory party? Did it make a complaint? It is cause for
concern that late in the day, as the hon. Gentleman puts it, the EHRC
is taking action. We would wait a long time for the Tory party to
galvanise one of our institutions into chasing after that racist party.
He misses the target every time. He also misses the target in relation
to the Minister for Women and Equality, because what she said in
Parliament was
correct. I
do not want to say too much about the current situation with the EHRC,
because I hope that the BNP will get the message before it has to be
taken to court, but the EHRC takes a particular view of the current
law, which is not universally held. The Bill will put it beyond
peradventure that a political party cannot discriminate against an
existing or potential member on the basis of their race, sex, religion
or belief. The hon. Gentleman has no point to make, and I do not think
there was anything else that he wanted to raise on the
clause. Question
put and agreed to.
Clause 101
accordingly ordered to stand part of the
Bill.
Schedule
15Associations:
reasonable
adjustments Amendments
made: 79, in schedule 15, page 207, line 35,
leave out from ‘who’ to end of line 36 and
insert ‘—
(a) are, or are seeking to become or might wish to
become, members, (b) are
associates, or (c) are, or are
likely to become,
guests.’. This
amendment and amendment 80 would expand the scope of the duty on
associations to make reasonable adjustments so that the duty applies in
relation to prospective members and guests. The omission of provision
to that effect from the Bill on introduction was an
oversight. Amendment
80, in
schedule 15, page 208, line 1, leave
out from ‘relevant’ to end of line 2 and insert
‘matters are— (a) access to
a benefit, facility or
service; (b) being admitted to
membership or invited as a guest.’.
—(The
Solicitor-General.)
See explanatory statement for
amendment
79. Schedule
15, as amended, agreed
to. Schedule
16 agreed
to. Clauses
102 to 106 ordered to stand part of the
Bill.
Clause
107Proceedings Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient to discuss new
clause 10— Representative
actions— ‘(1) The
Minister shall make regulations to permit the Equality and Human Rights
Commission or a registered trade union to apply to a court or tribunal
as appropriate for a representative action order in relation to a
defined class of persons (“the class”) who would benefit
from the litigation of rights, or common issues in relation
to rights that members of the class may have as a result of the
provisions of this Act. (2) The
regulations shall make rules in relation to the making and termination
of a representative action order and its
conduct. (3) Such rules shall
provide for hearings to be conducted in private when it is necessary
for the issues between the members of the class and the Equality and
Human Rights Commission or a registered trade union to be resolved and
those issues are subject to legal professional privilege shared by
members of the class. (4) Such
rules shall make provision for the hearing of any issue as defined in
subsection (3) to be undertaken and managed by a different judge or
tribunal from the judge and tribunal that have the responsibility for
determining the rights or common issue in relation to rights, of the
member
class.’. Sandra
Osborne (Ayr, Carrick and Cumnock) (Lab): This is an
important issue relating to representative actions, on which we took
considerable evidence from the Women’s National Commission, the
TUC and others prior to our formal debates in Committee. It is
disappointing that the Bill does not contain a provision for
representative actions. I will try to be brief and stick to the point,
because everyone is familiar with the arguments following the evidence
that we took.
As we all
know, pursuing an equal pay case at a tribunal is a long, complex and
stressful process that rarely delivers equal pay for women. Much pay
discrimination has been discussed in previous debates as systemic, and
collectively it affects a group of women, yet the courts still have to
hear each case individually rather than hearing a group of cases
together. Each individual woman making her own claim can suffer
emotional and financial costs. As a direct result of that,
many legitimate pay claims do not progress to the court stage.
Furthermore, the tribunal process as a whole is unnecessarily
protracted and financially burdensome to all
parties. Representative
actions would ensure that individual women were less likely to be
victimised. The process would be quicker and cheaper for all parties
and would apply to all women affected, not just those who can take the
case. It is no surprise that that is supported by the likes of the
trade union Unison, which for many years worked on behalf of its
members on equal pay and the single status agreements, which took at
least five years to settle, although some cases are still not yet
settled. I
can cite the case of some of my constituents, who are carers in the
local authority. A large number of women settled their claim without
recourse to the tribunal system and received—eventually, after a
few years of negotiations—£5,000 in compensation.
However, four women in my constituency decided that they would pursue
the claim to the tribunal and are waiting yet for a settlement. They
did not receive the £5,000 because they are pursuing the
claim—the council would not pay the sum without prejudice to the
outcome of the
case. To
its credit, Glasgow city council did pay the sum, and women who are
pursuing the claim there will, I hope, reach a conclusion within the
next five years, if they are very lucky indeed. It is to the four
women’s credit that they are determined not to take the
£5,000, which is a great deal of money for a low-paid worker,
but they should not have to do that in the first place. That is a
powerful argument in favour of representative
actions. While
recognising that the Civil Justice Council is carrying out work on
representative actions and collective redress procedures, questions
have been asked by citizens advice bureaux and others about whether the
CJC’s proposals are sufficient for an effective collective
redress regime in discrimination cases. Will the Minister confirm that
the CJC is reviewing the technical aspects of that area of law, but is
not specifically concentrating on equality
law? The
TUC and others believe that the introduction of the concept for equal
pay cases via the Bill is appropriate. I would be grateful if the
Minister explained why she feels it necessary to await the outcome of
the deliberations of the Ministry of Justice, rather than allow groups
of employees to take actions in discrimination cases, whereby trade
unions or the EHRC could bring a claim on behalf of identifiable groups
of
women. Mr.
David Drew (Stroud) (Lab/Co-op): I rise to support my hon.
Friend’s case. The new clause is important and I hope that my
hon. and learned Friend the Minister will look on it favourably. Many
of our constituents face real discrimination on this route, and it is
psychological more than anything else, which means that people show
sheer guts in taking up an
issue. Many
people are not that articulate or worldly wise about the system, so
they have to rely on others to support them. We all have excellent
examples from the advice agencies operating in our constituencies. In
my case it is Citizens Advice, but there are other advice agencies that
are also helpful. However, I want to make a plea on behalf of the trade
unions.
I do not
understand how anyone, certainly in a larger work force or a larger
employment base, does not belong to a trade union. If nothing else, it
is a form of self-preservation because of how trade unions can use
their expertise and knowledge to provide collective redress in cases
where people face individual problems. I often refer
people—usually those who are not in a union—to trade
union officers to pick up and use their expertise. They are the people
who know about the real injustices in the workplace and the way that
those injustices should be taken up. However, they can only be taken
up, even though the case may only involve an individual, where a form
of collective redress
exists. 9.45
am I
hope that the new clause is looked at sympathetically by the
Government. It is a plea to be more proactive in respect of
references—clause 107 refers to references—to secure
collective redress where injustices are seen to take place. That is
more likely to lead to the individual in a difficult position feeling
confident that their position is being properly defended. That is why I
come back to the role of trade unions, which provide the best advice on
injustices in the workplace. I hope that we can make some positive
progress on the matter. If this is not the appropriate place to do so,
perhaps on Report the Government will look to strengthen the clause and
consider how new clause 10 could add to
it.
Lynne
Featherstone: This is an extremely important clause,
partly because the backlog has been so dramatic and only a tiny
proportion of cases are resolved. It can take women years to get their
cases heard or resolved. With a backlog of thousands of cases, clearing
about 600 a year would be good going. I have not seen in the Bill or
heard from the Minister that manifold extra resources will be given to
fight women’s cases, or to provide for more tribunals or
facilities so that the speed at which their cases are dealt with might
be hastened dramatically. We need a dramatic step change. Such a change
could be secured through representative action.
In June 2008,
the Minister for Women and Equality clearly stated in the Government
Equalities Office document, “Framework for a Fairer
Future—The Equality Bill” that the Government would
consider the case for representative action following the Civil Justice
Council’s recommendation. In November 2008 in its final report
to the Lord Chancellor, entitled “Improving Access to Justice
through Collective Actions”, the council made the following
recommendations: “Recommendation
1 - A generic collective action should be introduced. Individual and
discrete collective actions could also properly be introduced in the
wider civil context i.e., before the CAT or the Employment Tribunal to
complement the generic civil collective
action. Recommendation
2 - Collective claims should be capable of being brought by a wide
range of representative parties: individual representative claimants or
defendants, designated bodies, and ad hoc
bodies.” Those
designated bodies could be the trade union, the EHRC or charities that
represent people with disabilities. The Government have already had
in-depth consultation, where representations were made that
representative action should be introduced. They have had expert
opinion clearly saying that representative action should be introduced.
It would appear to the Liberal Democrats
that the Government’s plan to look at the matter again is a
delaying tactic. We do not need more consultation. We do not need to
ask experts what they think. We have already had their conclusions. I
would like to hear from the Minister why the Government are not taking
action in the Bill to introduce representative action. It is the most
obvious legislative way of dealing with the operation of employment
tribunals and their
jurisdiction. The
Solicitor-General: Perhaps the hon. Lady would tell me how
that would
work. Lynne
Featherstone: I could write to the hon. and learned Lady in more
detail about how it would work. However, my understanding from trade
unions I have met with is that, where appropriate, a representative
group would consider the collective argument in a case as it applies to
other individuals affected in the same way. It would then take the
case, with those women, to the tribunal.
The case for
representative action is strong and the reason is simple. The structure
of discrimination law lends itself to representative action. The law
protects someone from discrimination because of their protected
characteristic, so if one person can demonstrate that they have been
discriminated against because of that protected characteristic, and if
others in the same company, or in similar employment, with the same
protected characteristic, have, or are likely to have, been treated in
the same way, a representative group such as a trade union council, the
EHRC or a charity—charities are not mentioned in the new clause,
but perhaps they could have been—could take representative
action. Rather than requiring each individual to go through the long,
complicated and difficult process of bringing a case to tribunal, we
should let one person represent them
all.
Mr.
Harper: May I unpick the hon. Lady’s line of
argument? Is she arguing in favour of the new clause and representative
action as a principle, is her argument driven largely by the delays and
slowness of the existing tribunal system, or is she arguing
both?
Lynne
Featherstone: In a sense, both. It would be disingenuous
to say that the backlogs have not focused the mind on this possible
solution. However, the solution has merits in its own right. It would
be ludicrous and resource intensive to have identical, or almost
identical, employment cases involving discrimination against people
with protected characteristics, and not to seek collective
redress.
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