250. Part 9 of the Bill covers how and where
to bring proceedings. Clause 113 provides a rule making power
for the Civil Procedure Rule (CPR) Committee in relation to national
security cases. Under these rules, the CPR Committee may empower
courts to exclude claimants, their representatives or assessors
from all or part of the proceedings and/or keep secret all or
part of a court's reasons for its decision where "the court
thinks it is expedient to do so in the interests of national security".
In our correspondence with the Solicitor-General, we asked for
an explanation of the safeguards which will be in place to ensure
that those who are excluded from proceedings or not provided with
reasons have access to a court and to a fair hearing. In
her reply, the
Solicitor-General noted that the rights of claimants had to be
balanced against national security interests. Those excluded may
make a statement before the proceedings and have his or her interests
represented by a special advocate during the closed part of the
proceedings. She also stated that the clause does not provide
a blanket power, but limits the exercise of the power to situations
where the court consider it to be "expedient to do so in
the interests of national security".
251. Exclusion from proceedings determining a
civil right, such as an individual's employment, engages the right
to a fair hearing under Article 6 ECHR.
We recommend that the Bill be amended to make clear that an
individual is entitled to make a statement before the proceedings,
including on whether or not it is compatible with his Article
6 ECHR rights to exclude him from all or part of the proceedings.
Power to Make Recommendations
252. Employment Tribunals are given a wider power
to make recommendations than they currently have,
although there is no sanction for non-compliance.
We welcome the extended powers of Employment Tribunals to make
recommendations, as this should ensure a more widespread respect
for the right to equality. However, we note with concern that
there is no sanction for non-compliance, which may make the provision
toothless in practice if employers are able to ignore a Tribunal's
recommendations without the possibility of any action being taken
253. However, this enhanced power will not apply
to equal pay cases. Responding to our request for an explanation,
the Solicitor-General replied that permitting recommendations
in equal pay cases would be a significant change in equal pay
law, it is necessary to be clear what the effects of any change
would be, and there is currently no evidence on how they could
be used in equal pay cases (unlike discrimination cases). She
stated "the Government therefore needs to assess in more
detail the additional value that allowing tribunals to make recommendations
in this area would add".
254. We are concerned by the exclusion of
equal pay cases from the enhanced power to make recommendations.
Equal pay cases are a source of much complex and lengthy litigation,
which currently overburdens Employment Tribunals: in our view,
some of this burden could be alleviated if Tribunals were able
to be more prescriptive about the steps which employers should
take, which would benefit not only the litigants in a case, but
the wider workforce more generally. The Government states that
extending the power to equal pay cases at this stage would be
imprudent as there is currently no evidence of the effect that
allowing such recommendations would have in practice. We therefore
recommend that the Government should actively seek and publish
evidence of the anticipated effects of an extension of the power
to make recommendations to equal pay cases, with a view to determining
whether or not future legislation is required.
255. The Bill makes no provision for the possibility
of representative actions being pursued.
We asked the Solicitor-General whether the Government considered
that the "group" nature of many discrimination claims
make it appropriate for the Bill to provide for the possibility
of representative actions to be brought on behalf of claimants
who allege that they have been subject to discrimination.
The Solicitor-General replied that the Government recognises that
there are situations in which a number of individuals may wish
to bring broadly similar discrimination claims against a similar
The Government considers it important that the
possible impact be fully explored, before deciding whether or
not to legislate.
256. The Solicitor-General referred to current
work of the Ministry of Justice and the Civil Justice Council
on the general case for introducing representative actions and
on research commissioned by the Government Equalities Office on
whether representative actions are applicable to discrimination
and equal pay cases in Employment Tribunals.
Responding to a new clause to permit representative actions, tabled
in the PBC, she referred to the Civil Justice Council's proposals
as a "muddle" as they are based on what happens in civil
courts generally (i.e. that the winner recovers his or her costs),
rather than within Tribunals specifically (where the costs rules
are different). She raised a number of practical problems such
as who would be a representative body, how would costs be dealt
with, whether there would be an opt-in or an opt-out mechanism
for people to be represented and how disputes would be resolved
between a claimant and a representative.
She referred to a consultation before the summer, if the Government
decided that it wished to proceed with the possibility of representative
actions, with a view to a new provision being tabled in the House
of Lords. In July
2009, the Ministry of Justice published its response to the Civil
Justice Council's report and suggested that representative actions
could be introduced on a sector by sector basis.
257. In the PBC, the Trades Union Congress (TUC)
and the Confederation of British Industry (CBI) disagreed as to
the benefits of representative actions.
The TUC suggested that representative actions would "enormously
expedite litigation", but that the power should be curtailed
so as not to expose employers to "wildcat litigation".
The CBI, on the other hand, considered that it was a "myth"
that representative actions would streamline and facilitate the
progress of claims, as a Tribunal had to consider the individuals
merits of claims at some stage.
There is a real risk that representative action
would lead to a more litigious society and greater pressure on
employers to settle cases even where they are pretty sure that
they would win.
258. We are pleased that the Government is
considering whether to permit representative actions. We believe
that this has the possibility of ensuring swifter justice for
litigants and employers alike. We note that the Government intended
to consult on the possibility before the summer recess but that
no such consultation has been published. We recommend that the
Government give urgent consideration to this issue and consult
on it as a priority, with a view to amending the Bill in the House
314 Ev 67 Back
See Clause 113(1). Back
See e.g. A v United Kingdom (App. No. 3455/05, 19 February
2009, Grand Chamber); Secretary of State for the Home Department
v AF  UKHL 28; K Tariq v Home Office (2009),
EAT 16 October 2009 (in which the appellant appealed against an
Employment Tribunal's decisions concerning the conduct of proceedings
to be held in private on national security grounds). Back
Clause 120. Back
Clause 120(7). Back
Ev 58 Back
Ev 67 at Q 59 Back
According to a Written Answer, however, s.7 Employment Tribunals
Act 1996 contains the power to make regulations or procedure rules
to enable equal pay claims to be made in representative proceedings
in Employment Tribunals (HL, 29 June 2009, col WA11). Back
Ev 58 Back
Ev 67 Back
Ev 67 Back
PBC Deb, 25 June 2009, cols 504-505. Back
PBC Deb, 25 June 2009, col 506 & 509. Back
Ministry of Justice, The Government's Response to the Civil Justice
Council's Report: Improving Access to Justice Through Collective
Actions, July 2009. Back
PBC Deb, 9 June 2009, col 90-91. Back
PBC Deb, 9 June 2009, col 90. Back
PBC Deb, 9 June 2009, col 90. Back
PBC Deb, 9 June 20009, col 91. Back