Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


National Security

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,[314] 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".[315]

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.[316] 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,[317] although there is no sanction for non-compliance.[318] 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 against them.

253.  However, this enhanced power will not apply to equal pay cases. Responding to our request for an explanation,[319] 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".[320]

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.

Representative Actions

255.  The Bill makes no provision for the possibility of representative actions being pursued.[321] 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.[322] 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 party. However:

    The Government considers it important that the possible impact be fully explored, before deciding whether or not to legislate.[323]

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.[324] 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.[325] 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.[326] 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.[327]

257.  In the PBC, the Trades Union Congress (TUC) and the Confederation of British Industry (CBI) disagreed as to the benefits of representative actions.[328] 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".[329] 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.[330] They suggested:

    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.[331]

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 of Lords.

314   Ev 67 Back

315   See Clause 113(1). Back

316   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 [2009] 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

317   Clause 120. Back

318   Clause 120(7). Back

319   Ev 58 Back

320   Ev 67 at Q 59 Back

321   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

322   Ev 58 Back

323   Ev 67 Back

324   Ev 67 Back

325   PBC Deb, 25 June 2009, cols 504-505. Back

326   PBC Deb, 25 June 2009, col 506 & 509. Back

327   Ministry of Justice, The Government's Response to the Civil Justice Council's Report: Improving Access to Justice Through Collective Actions, July 2009. Back

328   PBC Deb, 9 June 2009, col 90-91. Back

329   PBC Deb, 9 June 2009, col 90. Back

330   PBC Deb, 9 June 2009, col 90. Back

331   PBC Deb, 9 June 20009, col 91. Back

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