Equality Bill

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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 15

Associations: reasonable adjustments
Amendments made: 79, in schedule 15, page 207, line 35, leave out from ‘who’ to end of line 36 and insert ‘—
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 107

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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