Equality Bill

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The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, David Taylor, † Ann Winterton

† Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)

† Baird, Vera (Solicitor-General)

† Baron, Mr. John (Billericay) (Con)

Boswell, Mr. Tim (Daventry) (Con)

† Brown, Lyn (West Ham) (Lab)

† Drew, Mr. David (Stroud) (Lab/Co-op)

† Featherstone, Lynne (Hornsey and Wood Green) (LD)

Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)

† Griffith, Nia (Llanelli) (Lab)

† Harper, Mr. Mark (Forest of Dean) (Con)

† Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

† Hesford, Stephen (Wirral, West) (Lab)

Howell, John (Henley) (Con)

Mason, John (Glasgow, East) (SNP)

† Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)

† Penrose, John (Weston-super-Mare) (Con)

† Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)

† Thornberry, Emily (Islington, South and Finsbury) (Lab)

Alan Sandall, Eliot Wilson, Committee Clerks

† attended the Committee

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Public Bill Committee

Thursday 25 June 2009

(Afternoon)

[Ann Winterton in the Chair]

Equality Bill

Clause 107

Proceedings

1 pm

Question (this day) again proposed, That the clause stand part of the Bill.

The Chairman: I remind the Committee that with this we are taking 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.’.

The Solicitor-General (Vera Baird): Lady Winterton, welcome back to our happy Committee—we are happy because we are finishing early.

I was coming to the conclusion of my remarks before the Committee adjourned. What will happen next is that the Ministry of Justice, which has responsibility for the issue of representative actions and matters across the entire civil justice sector, will respond to the Civil Justice Council. We have done a piece of work that has fed into its deliberations and we would wish to consult, before the recess, on whether representative actions should come into play in tribunals. If we could accomplish that, we would expect it to report and for us to respond early in the autumn, so any legislative provision would be unlikely to catch this Bill before it goes to the Lords. However, we would seek to introduce such a provision when the Bill, which is the obvious legislative vehicle for such a measure, is in the Lords.

Emily Thornberry (Islington, South and Finsbury) (Lab): If my hon. and learned Friend is able to accomplish that, it will be a huge achievement and greatly welcomed on the Government Benches.

The Solicitor-General: I have always liked being congratulated before I have done anything, so I welcome those comments.

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Lynne Featherstone (Hornsey and Wood Green) (LD): I have listened carefully to the Minister and welcome what she has said. I await with interest what will come forward in summer. Such a provision is vital, so I am pleased that she is moving forward.

The Solicitor-General: It looks like approbation all round, so we will be happy all afternoon.

Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): I understand that this is a rather complicated situation, but it is important. I welcome the Minister’s comments.

Question put and agreed to.

Clause 107 accordingly ordered to stand part of the Bill.

Clause 108

Jurisdiction

Question proposed, That the clause stand part of the Bill.

Mr. Mark Harper (Forest of Dean) (Con): I have a brief question on the clause, which is relatively uncontroversial. Explanatory note 364 states:

“Currently, two assessors sit with judges in cases involving race and sex discrimination only. This clause extends the requirement to have assessors for cases of discrimination based on any protected characteristic...but reduces the number of assessors used in each case to one.”

Why have the Government made that decision?

The Solicitor-General: I suppose that we may run short of assessors now that we have extended the range. It seems as if one will suffice, granted that there are new training components for judges, so they ought to be more expert—not that they are not experts already.

Question put and agreed to.

Clause 108 accordingly ordered to stand part of the Bill.

Clauses 109 and 110 ordered to stand part of the Bill.

Schedule 17 agreed to.

Clauses 111 to 117 ordered to stand part of the Bill.

Clause 118

Remedies: General

John Penrose (Weston-super-Mare) (Con): I beg to move amendment 16, in clause 118, page 85, line 28, leave out paragraph (c).

The Chairman: With this it will be convenient to discuss the following: amendment 17, in clause 118, page 85, line 29, leave out subsection (3) and insert—

‘(3) In the event that an employment tribunal finds that an employer has contravened a term modified or included by an equality clause, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of the audit available in a manner prescribed in regulations made by the Secretary of State.’.

Amendment 18, in clause 118, page 86, line 8, leave out subsection (7).

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John Penrose: I rise to speak to amendment 16. Before I do so, I should say that I am conscious that the entire Committee wants to make progress this afternoon, and that amendments 17 and 18 are on topics which hon. Members on both sides of the Committee have given a thorough airing under clause 73. Therefore, rather than go over the same ground, I am not planning to speak to those two amendments, and I give notice of my intention not to press them.

On amendment 16, there is more of a substantive issue about which we want to probe the Minister. It is to do with what an appropriate recommendation from a tribunal might involve. There is a definition of an appropriate recommendation in clause 118(3). It is

“a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter”.

We want to know the Government’s thinking. Over what period might that take place? What is the scope of the recommendation? What is the force of a recommendation as opposed to an instruction?

I am sure that all members of the Committee would agree that it may be necessary, when a finding has been made that an organisation has been behaving in an illegal fashion, for that organisation to clean up its act and to change what it is doing, potentially substantially. Obviously, how it is asked to do that could have a profound impact on what it actually does. First, therefore, will the provision have binding effect? I presume so, but the word is “recommendation”. Perhaps the Minister could clarify the degree of compulsion that is inherent in the Government’s intentions.

Secondly, the Conservative party is concerned to provide enough leeway that organisations which are instructed to achieve a particular outcome—a desirable outcome that would reduce discrimination—may be able to come up with new and different ways of achieving that outcome which may not entirely be those which were originally envisioned by the tribunal under its recommendation. We wonder whether the Government were envisaging that tribunals will mandate process—steps to be carried out regardless of the outcome—or whether they will say, “You must achieve this or that and you have a degree of flexibility about how.”

The reason that that is important is, first, that organisations will often come up with creative solutions that are not necessarily envisaged by lawyers and their representatives in the tribunals. Secondly, things change over time. It says in the clause that a recommendation must be “within a specified period” but if that specified period lasts a good long time—it could, in theory, be five or ten years—and the world moves on, the organisation merges or splits, or the sector in which it is working alters in a profound way, it might be that, if it were mandated to take process steps to change what it was doing internally, those steps would cease to be effective. I am sure that no one here would want that. Therefore, any recommendations need to be future-proof. We must ensure that, if the world changes, such organisations are still bound to achieve the mandated outcomes and make sure they are not behaving in a discriminatory, or otherwise disadvantaging fashion.

We would like to probe the Government on how they intend to deal with those issues, and what they believe the scope and powers will allow them to do—either

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here, in secondary legislation or in guidance—to ensure that they do not fall into any of the various pitfalls that I have described.

Mr. Harper: I shall speak briefly. I had not intended to speak at all, but I am afraid that the Solicitor-General provoked me this morning in the Chamber, at women and equality questions, when she implied that we did not think that we should do anything about the gender pay gap. We said at length when we debated an earlier clause that we acknowledged that there was a problem. We simply disagreed about the solutions. Amendment 17, as best we could draft it, would put our policy into the Bill. That is why we tabled it. My hon. Friend the Member for Weston-super-Mare said that we did not want to spend a long time discussing the amendment because the issue had a thorough airing when we debated the earlier clause. I think that all members of the Committee would agree with that. However, given what the Solicitor-General said in the Chamber, I want to remind the Committee that we think that this is a problem that needs solving; we simply disagree with the Government about the nature of the solution. We discussed that issue thoroughly and I am sure that we shall return to it at later stages and in the other place. I think that that is all that needs to be said.

The Solicitor-General: If I have understood correctly, it is amendment 17 that will not be pressed. Is it also amendment 18? That amendment would remove the power of tribunals to award compensation if a respondent fails to comply with a recommendation. That relates to the question from the hon. Member for Weston-super-Mare about the measure of compulsion. That is the default availability. The tribunal could award or increase compensation if a recommendation is not accepted.

Amendment 16 would remove the current power to make recommendations. I do not suppose that is what the hon. Gentleman intended, either—it is probably just the way it is drafted. He just wants me to say what reach into business these proposals would offer.

Mr. Harper: Amendment 18 would leave out subsection (7). I think I am right that the order that the tribunal can make to increase compensation applies only under subsection (2)(b)—only where the order is to pay compensation specifically to the complainant. It is not in relation to the recommendation of a more general nature that the tribunal might make to the business. I think that I am right in saying that.

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Prepared 26 June 2009