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Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks attended
the Committee Public Bill CommitteeThursday 25 June 2009(Afternoon)[Ann Winterton in the Chair]Equality BillClause 107Proceedings 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 10Representative
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 Committeewe 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.
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.
Sandra
Osborne (Ayr, Carrick and Cumnock) (Lab): I understand
that this is a rather complicated situation, but it is important. I
welcome the Ministers
comments. Question
put and agreed to.
Clause 107
accordingly ordered to stand part of the
Bill.
Clause 108Jurisdiction 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 expertnot 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 118Remedies:
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).
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 Governments 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 Governments
intentions.
Secondly, the
Conservative party is concerned to provide enough leeway that
organisations which are instructed to achieve a particular
outcomea desirable outcome that would reduce
discriminationmay 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 processsteps to be carried out regardless of the
outcomeor 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 timeit could, in theory, be five or ten
yearsand 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
doeither
here, in secondary legislation or in guidanceto 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, eitherit 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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