Mr.
Harper: I am not saying that there is not. I made the
points I did to present a balanced argument. I acknowledged openly that
if an individual brings a case in relation to a large, well resourced
company, there
clearly is an imbalance in the resources available to the employee, if
they are acting by themselves, and to the company. I was simply making
the point that with smaller employers there is not necessarily a
significant imbalance in
resources. Let
us consider how employment tribunals work in terms of the cost
position. Sometimes the relationship is altered because the individual
does not have to pick up the cost. Because of the potential damage to
the employer’s reputation and so on if they lost the
tribunal—the potential award could damage their
reputation—they might feel compelled to have legal
representation. The other issue, which is more significant for smaller
companies, is the management time required to deal with the case.
Sometimes the power relationship is not in favour of the employer; it
is the other way
round. I
am presenting that case simply to give the Committee a balanced view,
particularly for smaller employers. I was not saying that there is not
an issue. Clearly, the issue that the hon. Members for Ayr, Carrick and
Cumnock and for Stroud have highlighted is real. I am just saying that
the Committee needs to think carefully about how we address it. We need
to think through all the
consequences.
Emily
Thornberry: I am listening with interest to what the hon.
Gentleman is saying, but it strikes me that it is slightly off the
point. This is not a question of an individual employee vindictively
taking a case against an employer. The essence of it is class actions.
It is about a group of people and things that affect a group of people.
The examples he is giving may be examples in other circumstances, but
absolutely not in this one. There may be other problems with class
actions, but what is being described is not one of
them.
Mr.
Harper: I obviously did not make myself clear. I
mentioned the argument about cases being brought that perhaps do not
have merit simply to make the point that for smaller companies the
balance of power and resources between employer and employee is not
necessarily completely out of line as it is—several hon. Members
quite properly said this—in the case of an individual employee
against a large company. That is the only point that I was seeking to
make. I
illustrated that point with examples of cases that have been brought to
me. I was not trying to say that with representative actions one would
have a lot of people bringing cases without merit. The hon. Member for
Islington, South and Finsbury is right that if a significant number of
people were bringing a case, people would not bring meritless cases for
personal reasons, because clearly there would be a representative group
only if there was some shared cause. In fact, the number of meritless
cases being brought might be reduced. I was simply saying that we must
think of the costs on smaller companies, because the balance is not
necessarily out of
line. I
have made the points on what would happen about the number of cases and
how the matter would be dealt with. The final point, which we have
already alluded to, concerns the impact on the tribunal system. I think
there is general agreement that the tribunal system is not working as
well as it should. I do not know whether
that is a resourcing question or a process question about how the
tribunals work and whether getting the system to work better using
existing resources would allow us to process more
cases. We
have to consider not only the clause, but how the system works. I hope
the Minister will do that.
10.15
am
The
Solicitor-General: My three colleagues make a powerful
case for representative actions. If I may add to the broader argument
levelled by my hon. Friend the Member for Hackney, North and Stoke
Newington, the general view now seems to be that the single most
important thing in further reducing child poverty is equal pay for
women. She has hit an important nail on the head.
All three of
my colleagues powerfully argued their case, which was not spoiled by
the allegation from the hon. Member for Hornsey and Wood Green that,
“It is easy to introduce these things. We can’t think why
the Government don’t just up and legislate.” That
attitude reflects the point made by my hon. Friend the Member for
Islington, South and Finsbury, who noted how long the Liberal Democrats
have been out of government and that they have no idea what steps have
to be taken before sensible provisions that will meet this case can be
brought into play. The analysis by the hon. Member for Forest of Dean
pinpointed some of the things that the hon. Lady simply had not thought
about.
There are a
lot of problems with the proposals. Who would be a representative body?
One possible way forward would be to allow a tribunal to certificate
bodies as appropriate representatives, either for one case or as a
generality. That might mean that the measure is too narrow in who it
says could be representative.
The way we
deal with costs is important. The hon. Member for Forest of Dean made
the important point that if a representative can mobilise 2,000 people
to bring an action against a business, the business might, if it is not
sizeable, simply capitulate, with right or wrong never having been
determined. That issue has to be balanced so that justice is not
undermined.
John
Penrose (Weston-super-Mare) (Con): To pursue the
Minister’s point about certificating potential new
representative bodies, I was reminded that two consumer affairs
bodies—Which? and Consumer Focus—are authorised to make
super-complaints on behalf of generalised groups of consumers, rather
than a group of named individuals. Is that the sort of thing that the
Minister is talking about or is it too generalised and widely drawn?
Would a group of named individuals need to be identified by whichever
named representative organisation was certificated in the way she
described?
The
Solicitor-General: The hon. Gentleman puts his finger on
another problem that has to be resolved. Do we have an opt-in mechanism
for the people who would be represented, so that the representative
body had to get everybody’s case, everybody’s signature
and everybody’s consent before it could go forward?
Alternatively, should we have an opt-out mechanism, so that if the
tribunal certificated, say, the commission to take a case in a
particular work environment, every worker there would be deemed to have
opted in unless they opted out?
Which? used
provisions in relation to the high, inflated prices of replica football
kit and won a significant victory, although it was not prepared to take
any more cases because the process was incredibly complicated. That was
not quite the system that we are looking at here, but there has been
the ability to deal with things in that way. It is another way to deal
with things that is not linked to employment.
We need to
look at a range of issues—costs, who represents whom, whether
people opt in or out, and how disputes are resolved between a claimant
and a representative. I agree completely with my hon. Friends that, as
discrimination and equal pay are systemic, it is onerous to expect an
individual—they are often poor, pretty well by definition, and
alone—who happens to have been wronged in the first place to
have the fortitude and the backing to sustain an action that takes a
long time. That seems inappropriate and not a sensible way to pursue
systemic problems in this
century.
Mr.
Harper: The Solicitor-General said that the actions take a
long time. Have the Government given any thought—the review was
mentioned earlier—to whether it is possible to speed up these
cases? Is that a resourcing issue or an issue of
processes?
The
Solicitor-General: I can assure the hon. Gentleman that
there is a lot of reflection on and consideration of how the tribunal
system works. Obviously, over the past few years the relative trickle
of cases has suddenly grown into a massive flood, pretty well
overwhelming the resources that were reasonably predicted to be needed
and resulting in the logjams with which we are all familiar. There is
obviously a need to deal with those in some different way, but the
proposal would be a sensible way forward if we could work out the
technical
problems. Instead
of having several hundred complainants pursuing one employer, one after
another—even if they could be put together for some
cases—a representative could decide the issue once and
everybody’s damages could be worked out
subsequently.
Ms
Abbott: I am listening very carefully to my hon. and
learned Friend. I am glad that she understands where I am coming from
on the new clause, but will she say more about the technical
difficulties as she sees them?
The
Solicitor-General: They are pretty well as I have said.
The muddle that the Civil Justice Council is putting forward—a
proposal for the whole of the civil courts and not specifically for any
sector—relies on what happens in the courts outside the tribunal
system—namely, the winner takes the costs. In such cases, the
costs move, as it were, with the action, but tribunal costs are
different.
A first glance at the CJC proposals shows that they would not fit the
tribunal system at all, but it is not impossible to change things round
to make them
practical. It
seems to us that of all kinds of court case, discrimination and equal
pay cases beg for a group action
provision.
Emily
Thornberry: What lessons can we learn from America?
Presumably, the Americans have been having such actions for some time,
so can we not learn from
them?
The
Solicitor-General: My hon. Friend really will frighten the
horses if she talks about American class actions, because they are very
much prey to the kind of hazard mentioned by the hon. Member for Forest
of Dean. A person can be used as a hammer, sometimes unjustifiably, so
we have to be more subtle and work to get things
right. We
are looking at the CJC report. Despite what the hon. Member for Hornsey
and Wood Green suggested, it reported only in November 2008. I must
tell her—I do not know whether she has tried to read the
report—that it makes “War and Peace” look like a
magazine, and it is complicated. I have waded through it, being an
anorak, and there are a lot of things that we need to tackle. However,
the Government Equalities Office has also done a report on
applicability to those specific kinds of case. We feel more positive
about that report than about some aspects of the CJC report.
We said that
we would consult on any proposals we make, so the hon. Lady will have
to be a little more tolerant. She sees that as time wasting, but we see
it as a sensible step before making what would be a significant change
to the English legal
system.
Mr.
Harper: I am grateful to the Minister for setting the case
out so well. Can she update the Committee on a timeline? I recognise
that such things have to be done with care because they would be
significant changes, but can she tell the Committee broadly when those
proposals might be available and over what period the Government are
likely to
consult?
The
Solicitor-General: I do not know why the hon. Gentleman
had to spoil the end of my speech—I was just about to answer
those questions. He knows I am
teasing. We
will quite shortly be able to come to conclusions on whether and how we
can go forward. We will consult if, as I hope, we say that we intend to
go forward and if the consultation is positive. Again, a consultation
has to be
meaningful. 10.25
am The
Chairman adjourned the Committee without Question put (Standing Order
No. 88).
Adjourned
till this day at One
o’clock.
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