Equality Bill

Public Bill Committee, 25 June 2009.

Clause 99

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 203, in clause 99, page 73, line 22, at end insert—

‘(f) internal party elections.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 204, in clause 101, page 74, line 3, at end insert—

‘(2A) An association is deemed to have at least 25 members for the purposes of subsection (1)(a) if it has been reconstituted or formed out of an association of at least 25 members.’.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

How nice to see you in the Chair this morning, Mr. Benton.

We agree with the Government that enabling political parties to discriminate positively in elections is a good thing, because that changes representation, and, as we know, there has been woeful under-representation of women and ethnic minorities. Amendment 203 is about extending that permission in enabling legislation to internal party elections.

Women are under-represented not only in political assemblies as mentioned in subsection (8), but sometimes in the upper echelons of those assemblies. Obviously we would not seek to bind the hands of a leader to appoint, all on their ownsome, a representative Cabinet. However, in internal party elections and on other occasions it would be helpful, in such cases as under-representation in federal committees, to be able to extend positive discrimination, should there be a need for that. We hope, obviously, that there would be no such need. The idea is simply to apply the same rights in internal party elections as are applied in external elections.

Mark Harper (Conservative, Forest of Dean)

I do not know whether the hon. Lady is thinking about her own party: when she talks about internal party elections, would that include all elections within a party, including the leadership election?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The provision would be enabling legislation, so yes, theoretically, it would apply to any party election in which an increase in representation of one sort or another was sought. The amendment is not directed at my party in particular.

Mark Harper (Conservative, Forest of Dean)

Leadership bid.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would not need enabling legislation to make a bid, should I care to do so. However, it is not my desire to do so, and I am not talking in a personal capacity. There is no self-interest to declare in the amendment. However, it would be useful to find that we are not inhibiting parties in any way from correcting any imbalance that they might find, and to make that lawful.

As to amendment 204, I do not know how likely the circumstances it would address are, and I would like the Minister to clarify whether we are worrying for nothing. We welcome the changes that the Government have made to outlaw discrimination by associations, and hope that any club would enter the enlightened era of openness, eschewing any discriminatory past that it might have had.

Nevertheless, the provisions are about ensuring that bigotry cannot hold sway, and I want some assurance from the Government about what would happen in the case of a golf club that had to give up some gender-based prerogative such as, perhaps—I do not know about this, as I am not a golf expert—male-only Saturday golfing. My reading of the Bill may be incorrect, and my fears unnecessary, but I want to understand that such a club would not be able to disestablish itself into smaller associations with a membership of less than 25, to maintain the ability to do as they pleased, and not come within the Bill. The amendment is intended for testing and clarification, and to put something on the record so that that could never happen.

Amendment 205 is about not leaving things to chance, with the possibility that a Government of a different hue might change the threshold at which the provision kicked in. Under the amendment, a future Government could not suddenly decide to change the threshold from 25 to 1,000, which would allow a host of associations not to be included in the protection of the Bill. Many of these important discretionary powers seem to rest on the belief that no Government would ever make changes in the wrong direction to ease the protection, rather than holding fast to the protection. I understand why the Government might want to tweak the numbers to ensure that they are covering the size of an association. My fear is that if that were not done the proper way round, we might run into difficulty.

Mark Harper (Conservative, Forest of Dean)

I will attempt to be relatively brief. I shall speak about the amendments and I might also touch on the clause more widely. I want the Minister to address a particular situation, which I hope that she can rule out, relating to the ability of political parties to take positive action in this way. Most political parties, if they were going to use the measure, would do so in the way that the example suggested. I do not think that any hon. Member would support in any way the British National party using the provision to discriminate positively in favour of candidates of a particular colour—in effect, to use it in the opposite way from that intended by the Government. Have the Government thought about that? Can the Minister assure us, for the avoidance of doubt, that it will not be possible?

When the clause, much of which has been carried over from existing legislation, was introduced, it was at that time, I think, supported by the Conservative party, although we have managed to make considerable progress—of course, it will not be visible until after the next general election—without using all-women shortlists. Indeed, 30 per cent. of Conservative candidates that we have selected already, without using the provisions of the clause, are women, and that is a higher percentage than either Labour or the Liberal Democrats achieved at the last general election. If we had a majority of just one after the next election, we would have at least 50 women MPs. At the last general election, we fielded the highest ever number of female candidates. As I said, we have made considerable progress, although we shall not see it in this place until after the electors have had the opportunity to speak, but that goes to show that it is possible to make considerable progress without the legislative changes proposed in the Bill by the Government or carried forward from previous legislation.

Vera Baird (Labour, Redcar)

I have no idea what the significance of that was, because it was palpably incorrect. There is a woman candidate in about 10 of the hopeless Tory seats in the north-east—that is real progress towards equality for women.

Mark Harper (Conservative, Forest of Dean)

Thirty per cent. of our candidates.

Vera Baird (Labour, Redcar)

Thirty per cent. of the hopeless candidates in the non-winnable seats are women. That is great—progress in the Tory party. On we go; let us leave reaction behind.

Amendment 203 would extend the provisions in clause 99 to internal party elections. We are not totally sure what is meant, but granted that it could not cover the leadership, we had better deal with it, I suppose—in a serious way, of course. We are not in favour of positive discrimination, which is the terminology that the hon. Member for Hornsey and Wood Green used, and there is no provision in the Bill to allow positive discrimination, which means discrimination in favour of an individual just because they have a protected characteristic, rather than on merit.

The all-women shortlist provisions have very effectively ensured that there is a larger number of women MPs in the Labour party than in any other party by an enormous margin, and those women have been able to put on the agenda things that have simply never featured in the past, such as concerns about domestic violence, the conviction rate in rape cases, child care and better provision for equality in this legislation and other legislation. All those matters came from Labour MPs and many of them were initiated by those among the influx of up to 100 women Labour MPs brought about by the positive action that we have had the wit to introduce and the foresight to use in a positive way.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I meant to say positive action. Women shortlists have been successful, and we want them extended to any party that wants to encourage such a change in emphasis.

Vera Baird (Labour, Redcar)

That is very good. Of course, the hon. Lady also ploughs a lonely furrow in the Liberal Democrat party, which probably has proportionately rather fewer women MPs than even the Tories. However, there is no doubt that my party is well ahead in this race. Indeed, the real sadness is that this is not a race—the other parties simply do not try to catch up and feel no real need to redress the gender balance.

Mark Harper (Conservative, Forest of Dean)

The Solicitor-General is saying things that she palpably knows are not the case. The leader of my party has made it very clear that we want significantly more women in this place and a more diverse parliamentary party, and he has taken significant steps to bring that about. As I said, 30 per cent. of the Conservative candidates who have been selected so far are women, and that includes our target seats, not just those that we do not expect to win. After the next general election, the Solicitor-General will find that the Conservative parliamentary party has a significant number of very good female Members of Parliament.

Vera Baird (Labour, Redcar)

One can only hope so, but it is highly unlikely. There are 9 per cent. of women MPs in the Tory party and 17 per cent. in the Liberal Democrat party, so it is a bit better, although it is, of course, very small in Parliament. Half a woman makes a massive difference in the Liberal Democrat party.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will not get involved in that discussion, because I accept that the Liberal Democrats have not done well enough on the number of women candidates in the party. I speak as someone who has argued that we could have taken positive action earlier than we did, but progress has been made.

However, I question the Solicitor-General’s view that the only way for the Labour party to introduce policies that women need is by having more women MPs. My party does not believe that MPs’ gender determines policy, which should be determined by what the party calls for democratically. For example, we have not had any out gay MPs since I was elected, but we have been consistently ahead of the game.

Emily Thornberry (Labour, Islington South and Finsbury)

Shame.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Lady says “Shame”, but the shame is parties not introducing equality policies regardless of people’s sexual orientation. Individuals do not have to be gay to want gay equality or to be black to want to fight racism. That connection should not be made as directly as the Solicitor-General makes it. It should not require women MPs for us to have pro-women policies. That is a slightly separate issue.

Vera Baird (Labour, Redcar)

That really is a doctrine of reaction. We do not know what impacts strongly and sharply on a community that we are not members of unless we tap into it properly, which the Liberal Democrats palpably fail to do. I am afraid that the hon. Gentleman has made a pretty negative contribution. Speaking of Liberal Democrat policy, when were the Liberals last in government? It was 100 years ago or just over, and there are about another 100 years to go.

Dr. Harrisrose—

Joe Benton (Labour, Bootle)

Order. the representation of various groupings in political parties is very interesting, but before the hon. Gentleman intervenes I should remind the Committee that we are debating amendment 204. I will allow the intervention, but hon. Members should bear my remarks in mind.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am not going to go into historical analogies. The purpose of the Bill is to increase the number of women MPs in politics, and we support that. However, it should not have to be the Bill’s purpose that policies that women need are promulgated. Liberal Democrat party policy is made by our conference, in which a far higher proportion of women participate than are present in the parliamentary party. In terms of undemocratic parties, the Solicitor-General may be right that it is essential for women to be represented in the small cabal at the top that makes the policy. Where there is democratic policy making, however, people do not have to rely on the elite making the policy. The elite should be bound by the membership and the democratic policy-making apparatus.

Vera Baird (Labour, Redcar)

What a dreadful admission. The conference is full of women and the parliamentary party is palpably empty of them. That really says it all. I am very pleased that the hon. Gentleman felt that confession was an appropriate way to clean the Liberal Democrats’ soul of the past.

The amendments are not necessary. There is certainly no suggestion as implied by amendment 204 that associations will break themselves up into smaller bodies to avoid the law. Even if they were Liberal Democrats, presumably there would be enough men and women in the organisation to say that they do not want to take such action just to avoid anti-discrimination law. We have no information, no understanding, no appreciation of a need for amendments 204 or 205. Our own positive provisions are sufficient, so I invite the hon. Member for Hornsey and Wood Green to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Is the Solicitor-General saying that amendment 203 would make positive action within the party legal?

Vera Baird (Labour, Redcar)

As far as I know, parties are self-regulating and can do what they want within the ambit of the forthcoming legislation. The hon. Lady can invite her national executive and her women-full conference to read the current legislation to see where it would take them in their internal machinations. The hon. Member for Forest of Dean made a point about single-sex shortlists. I was talking about positive action, not other characteristics.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will take Solicitor-General’s word that all parties are covered, whatever they do in respect of positive action within their confines. On that basis, I beg to ask leave to withdraw the amendment.

Diane Abbott (Labour, Hackney North and Stoke Newington)

Before we leave the clause, I wish to express my regret that it does not contain a mechanism for achieving the same leap forward for black and ethnic minority representation that we achieved in 1997 with an all-women shortlist. I shall to return to the subject when the Bill is discussed on the Floor of the House, but if progress on the matter of women has not been fast enough, progress on a more diverse racial and ethnic representation in Parliament has been pitifully slow. I could never have guessed 22 years ago when I was first selected as a candidate that 22 years later there would still be only one other Afro-Caribbean woman in Parliament and no Muslim women whatever. That rate of progress is not acceptable. Twenty-two years ago, people were telling me and my young friends—Bernie Grant, Paul Boateng and Keith Vaz—that the reason there were not more black and Asian MPs was that we were not ready or qualified. It was not true then; it certainly cannot be true now, when a whole new generation of young black and minority ethnic people have emerged on the political scene.

To touch on our earlier argument, Labour Members seem to be saying that the point of more women MPs is that legislation would be tailored to the needs of women. With respect to colleagues, the argument for more diverse parliamentary representation—whether more women, more black and Asian or more Muslim MPs—is not that only women can represent women and only black and minority ethnic people can represent black and minority ethnic people, but that we must have a Parliament that looks like Britain. I have argued that case for 22 years when it was not popular in the party. The argument is not that only people of a certain skin pigmentation can represent others with a certain skin pigmentation, but about the legitimacy of our democracy in the eyes of the people. Given the issues that have arisen in the past few weeks, we should be focusing more on the overall issue of legitimacy.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I thank the hon. Lady for agreeing with the point that I made earlier. The Liberal Democrats recognise that we just have not done well enough to attract more black and Asian candidates.

Emily Thornberry (Labour, Islington South and Finsbury)

Will the hon. Gentleman give way?

Joe Benton (Labour, Bootle)

Order. The hon. Gentleman cannot give way in an intervention.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We accept that we have not done well enough to attract black and Asian candidates to winnable seats. However, to extend the argument being made by the hon. Member for Hackney, North and Stoke Newington, I hope she accepts that the history of policies on immigration and asylum over the past 12 years shows that whether we have black and Asian representation in the parliamentary party is a separate issue. Her party obviously has more such representation. However, although she has voted with us on some occasions, her party’s record is not great in respect of showing sensitivity towards the stigma associated with its policies on asylum and immigration policies—and, indeed, on anti-terrorism—which all have an impact on the black and Asian population.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I listened with interest to the hon. Gentleman.

In the next few brief minutes, I want to move above party political points and put on record the principles for which I have stood for the past 23 years. The issue relates to the political process, particularly in cities such as London. An increasing proportion of younger people are from black and ethnic minority backgrounds. How can they be expected to see politics as relevant to them if they do not see MPs of whatever party that look like them or to whom they can relate?

As we have seen, having a black man as President of the United States has had an extraordinary effect not only on black Americans but young Americans and white Americans who felt that nothing could change and that politics was the same old, same old. If we show people that representation can change and that their representatives do not have to look like those who were there before, it will have a galvanising effect not only on women or minorities but on young people and the wider community. I believe that the Bill could do more in that respect. The idea seems to be that we should wait for natural processes, but that has given us two black women in 22 years—so in 50 years we will have three. We cannot wait for natural processes. We have to consider what sort of positive action can be taken.

We have heard various explanations of positive action as opposed to positive discrimination. My argument has always been that positive discrimination takes under-qualified people and puts them in position. Positive action is about making it possible for people to be put in position who are qualified but who, for all sorts of structural reasons, do not have access to opportunity.

I have not argued in a long while about race; and I have never argued for positive discrimination. I believe that it is not necessary. When I was first selected, there was a lot of media attention. I remember at Stoke Newington hearing one white party worker say to another, “It’s all very well, this Diane Abbott; I keep reading about her, but is she qualified?” My friend said “Well, do you know, she has 10 O-levels, four A-levels and a degree from Cambridge, and she has served for four years on the city council. What qualifications do you mean?”

Mark Harper (Conservative, Forest of Dean)

The hon. Lady gave the example of President Obama. He was selected as his party’s candidate in the primaries, and he became President of the United States because of his merit and talent. In no part of that process was any form positive action taken. Why was that possible in America, and why is it not possible here?

Diane Abbott (Labour, Hackney North and Stoke Newington)

I have my eye on the time, Mr. Benton, so I shall be brief.

To understand the rise of President Obama, we have to remember that he came from the politics of Chicago, which had been shaped by black mobilisation since before the second world war, by the huge influx of slaves that came to work in the northern cities and by positive action. That allowed Chicago to select black Congressmen before the second world war; and Chicago became only the second US state to have a black Senator. Obama was undoubtedly able to rise on merit, but he was able to do so as a result of positive action and black mobilisation that went back 50 years. That is all that we ask for today: give us the foundations on which our merit can be seen.

The question is important because of the changing nature of the demographics of the country and our big cities, the legitimacy of our politics and the pathetic progress made not only for women but for black and ethnic minority people. The black and ethnic minority community is looking for progress. People campaigning in the inner cities will know that some of the most conscientious and engaged voters are black or minority ethnic people. They are looking for progress. The Bill and the clause do not address that question, and I plan to return to the subject on Report.

Vera Baird (Labour, Redcar)

My hon. Friend said nothing with which I do not agree. She will know that we commissioned a report from Operation Black Vote on the viability of having black and ethnic minority shortlists, but it raised practical considerations that led to the Government deciding not to go in that direction. With a bit of luck the Speaker’s Conference will produce a little acceleration; the new Speaker is pretty committed to radicalism.

May I add a footnote to what my hon. Friend said? Really outstanding people can get on, whoever they are. Indeed, the hon. Lady herself is pretty special and got on a long time ago, when it was much harder even than it is now. The worst aspect of discrimination and of structural inequality is that people from the ruling sector—whether that is to do with class, race or whatever—get on in a way that people of roughly the same ability from other sectors do not. The vast bulk of people in the middle suffer most from discrimination.

Diane Abbott (Labour, Hackney North and Stoke Newington)

My hon. and learned Friend is quite right. Really outstanding women, such as Ellen Wilkinson, Barbara Castle and Jo Richardson have risen. The test of a truly equal society is when mediocre women and mediocre black candidates can rise in the same way that mediocre white male candidates have always risen.

Vera Baird (Labour, Redcar)

I agree. Down with mediocre white men!

Clause 101

Mark Harper (Conservative, Forest of Dean)

I will not detain the Committee too long. I am not entirely certain that this is the right time to raise the issues that I am about to raise—I am sure that you will tell me if it is not, Mr. Benton.

Before I go on, mention of outstanding women parliamentarians should not pass without referring to the Baroness Thatcher—the first female leader of a British political party. I am sure that she slipped the mind of the hon. Member for Hackney, North and Stoke Newington while she was talking about great women of the past. That omission needed to be filled in.

Emily Thornberry (Labour, Islington South and Finsbury)

Can the hon. Gentleman recall how many women from the Conservative party were promoted by Margaret Thatcher into her Cabinet? Was she the only woman in her Cabinet?

Mark Harper (Conservative, Forest of Dean)

Given that the Baroness became Prime Minister when I was only nine years old, I am not entirely familiar with all the people whom she promoted to the Cabinet. She certainly smashed through one barrier: whether one agreed with her or not, she showed beyond all doubt that a woman was eminently capable of being the Prime Minister of our country. That was an excellent example to set and it should have made it easier for women for two reasons: first, she demonstrated beyond peradventure that women could do the job; and secondly, she raised the aspirations of all those women who think that they can do the job to show that they can and should do it. Her example is remarkable.

Emily Thornberry (Labour, Islington South and Finsbury)

I am older than the hon. Gentleman —[Interruption.] It is true. I can assure him that photographs of the Cabinet of the time show only one woman, who is therefore not a feminist.

Mark Harper (Conservative, Forest of Dean)

I did not say that Margaret Thatcher was a feminist; I said that she was the first female Prime Minister. She believed in people succeeding on merit. I shall finish on this point, Mr. Benton, because I see you growing restless in the Chair. I meant to make a small point at the beginning of my remarks, but I am afraid that I provoked the hon. Lady. The parliamentary party that Margaret Thatcher led was not diverse. I have already said in response to the Minister that the current Conservative leader wants the party to be more diverse, and we have taken measures to make that happen. I am confident that it will be more diverse after the next general election. I am pleased that the Minister said in her response that she was looking forward to that and, implicitly, to a Conservative Government.

Vera Baird (Labour, Redcar)

Did I say that?

Mark Harper (Conservative, Forest of Dean)

Implicitly.

On the clause, I wanted to probe the Minister on what the existing law says on association and in which cases the Bill would actually change the law. During business questions on 11 June, the Minister for Women and Equality, who was talking about the provision in the constitution of the British National party that people who are not white cannot be members, said:

“Under the Equality Bill that is passing through the House, that constitution will be made unlawful.”—[Official Report, 11 June 2009; Vol. 493, c. 935.]

She also made a slightly inaccurate reference and said that we voted against the Equality Bill—we did not; we tabled a reasoned amendment—and she added that she hoped that we would strongly support the Bill, which would prevent us from having an apartheid political party in this country.

We, of course, abhor the behaviour of the British National party more than anyone else, and it is not wise for the Minister for Women and Equality to try to score cheap points on a matter where all the mainstream parties in this country should be united. She implied that a party having a constitution that prohibited anyone who was not white from being a member was not currently unlawful but that the Equality Bill would make it so. I am not sure that that is entirely accurate. As the Solicitor-General will know, the Equality and Human Rights Commission wrote to the British National party on Tuesday of this week about possible breaches of existing anti-discrimination law.

I shall briefly set out to the Committee what the commission has done. It wrote to the leader of the BNP, Nick Griffin, to outline its concerns about the BNP’s compliance with the Race Relations Act 1976 and asked for undertakings that it will make the changes required by the commission by 20 July. Failure to do so would result in the commission issuing an application for a legal injunction against the BNP. The commission refers to its existing statutory duties to enforce the provisions under the Equality Act 2006. That Act will be partly subsumed by this one. The commission also refers to provisions on racial discrimination under the Race Relations Act 1976, which will be subsumed to some extent by this one.

It seems that the membership criteria under the British National party’s constitution, its recruitment and employment policies, practices and procedures, and the provision of services by its elected officers to constituency members of the public are already prohibited by existing legislation. First, will the Solicitor-General confirm that that is the case? If that is so, the Minister for Women and Equality should not really be implying that those things become unlawful only with the passage of the Bill.

Secondly, given that the British National party’s constitution prohibits membership by people who are not white and since that party has been around for a while, can the Solicitor-General explain why it is only now, when the BNP has succeeded in getting its members elected to the European Parliament, that the EHRC has taken action against such discriminatory practices? If the BNP’s constitution has been in place for a while and it has been behaving in such a way for a while, the EHRC and its predecessor organisations should have taken action earlier to nip it in the bud. However, despite the lateness of the EHRC’s action, I entirely welcome it.

If the BNP’s constitution violates the law, I hope that the EHRC will get those undertakings. If it does not receive them, I hope that the commission will take the proper legal action to ensure that the British National party behaves in a non-discriminatory way and conducts itself in accordance with the law of our country. That would be the best answer to its behaviour and a good response by the EHRC. It is a shame that that has taken so long if the BNP’s behaviour is prohibited under existing legislation.

I am sure that every member of the Committee is behind what the EHRC has been doing—the measured and precise way that it has been doing it sends a clear message that political parties should not discriminate against anyone in the way that they conduct themselves.

Vera Baird (Labour, Redcar)

It is a cause of real regret that the hon. Gentleman wants to refer to Baroness Thatcher—the most abysmal, right-wing leader that this country has ever had, in any political party. She retarded the cause of feminine advance by years. He is clearly very ready to attach himself to her heritage.

What changes in the Tory party? Nothing whatever. We all know what to expect if the Tories get into power, and the more the hon. Gentleman talks, the less likely that becomes. It is extraordinary to say that he does not know how many women Baroness Thatcher had in her Cabinet because he was too young to know. I know how many women there were in Pitt the Younger’s and I was not born in 1790. I think he wanted to avoid the very pertinent and pointed question asked by my hon. Friend the Member for Islington, South and Finsbury. No talk of reasoned amendments takes away from the fact—totally obvious to the many thousands of stakeholders who support the Bill—that the Tory party voted against it on Second Reading. It wishes no advance in equality at all.

Which Tory party members complained to the Equality and Human Rights Commission to get it galvanised into action against the BNP? Did we hear from the Tory party? Did it make a complaint? It is cause for concern that late in the day, as the hon. Gentleman puts it, the EHRC is taking action. We would wait a long time for the Tory party to galvanise one of our institutions into chasing after that racist party. He misses the target every time. He also misses the target in relation to the Minister for Women and Equality, because what she said in Parliament was correct.

I do not want to say too much about the current situation with the EHRC, because I hope that the BNP will get the message before it has to be taken to court, but the EHRC takes a particular view of the current law, which is not universally held. The Bill will put it beyond peradventure that a political party cannot discriminate against an existing or potential member on the basis of their race, sex, religion or belief. The hon. Gentleman has no point to make, and I do not think there was anything else that he wanted to raise on the clause.

Schedule 15

Clause 107

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss 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.’.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

This is an important issue relating to representative actions, on which we took considerable evidence from the Women’s National Commission, the TUC and others prior to our formal debates in Committee. It is disappointing that the Bill does not contain a provision for representative actions. I will try to be brief and stick to the point, because everyone is familiar with the arguments following the evidence that we took.

As we all know, pursuing an equal pay case at a tribunal is a long, complex and stressful process that rarely delivers equal pay for women. Much pay discrimination has been discussed in previous debates as systemic, and collectively it affects a group of women, yet the courts still have to hear each case individually rather than hearing a group of cases together. Each individual woman making her own claim can suffer emotional and financial costs. As a direct result of that, many legitimate pay claims do not progress to the court stage. Furthermore, the tribunal process as a whole is unnecessarily protracted and financially burdensome to all parties.

Representative actions would ensure that individual women were less likely to be victimised. The process would be quicker and cheaper for all parties and would apply to all women affected, not just those who can take the case. It is no surprise that that is supported by the likes of the trade union Unison, which for many years worked on behalf of its members on equal pay and the single status agreements, which took at least five years to settle, although some cases are still not yet settled.

I can cite the case of some of my constituents, who are carers in the local authority. A large number of women settled their claim without recourse to the tribunal system and received—eventually, after a few years of negotiations—£5,000 in compensation. However, four women in my constituency decided that they would pursue the claim to the tribunal and are waiting yet for a settlement. They did not receive the £5,000 because they are pursuing the claim—the council would not pay the sum without prejudice to the outcome of the case.

To its credit, Glasgow city council did pay the sum, and women who are pursuing the claim there will, I hope, reach a conclusion within the next five years, if they are very lucky indeed. It is to the four women’s credit that they are determined not to take the £5,000, which is a great deal of money for a low-paid worker, but they should not have to do that in the first place. That is a powerful argument in favour of representative actions.

While recognising that the Civil Justice Council is carrying out work on representative actions and collective redress procedures, questions have been asked by citizens advice bureaux and others about whether the CJC’s proposals are sufficient for an effective collective redress regime in discrimination cases. Will the Minister confirm that the CJC is reviewing the technical aspects of that area of law, but is not specifically concentrating on equality law?

The TUC and others believe that the introduction of the concept for equal pay cases via the Bill is appropriate. I would be grateful if the Minister explained why she feels it necessary to await the outcome of the deliberations of the Ministry of Justice, rather than allow groups of employees to take actions in discrimination cases, whereby trade unions or the EHRC could bring a claim on behalf of identifiable groups of women.

David Drew (Labour, Stroud)

I rise to support my hon. Friend’s case. The new clause is important and I hope that my hon. and learned Friend the Minister will look on it favourably. Many of our constituents face real discrimination on this route, and it is psychological more than anything else, which means that people show sheer guts in taking up an issue.

Many people are not that articulate or worldly wise about the system, so they have to rely on others to support them. We all have excellent examples from the advice agencies operating in our constituencies. In my case it is Citizens Advice, but there are other advice agencies that are also helpful. However, I want to make a plea on behalf of the trade unions.

I do not understand how anyone, certainly in a larger work force or a larger employment base, does not belong to a trade union. If nothing else, it is a form of self-preservation because of how trade unions can use their expertise and knowledge to provide collective redress in cases where people face individual problems. I often refer people—usually those who are not in a union—to trade union officers to pick up and use their expertise. They are the people who know about the real injustices in the workplace and the way that those injustices should be taken up. However, they can only be taken up, even though the case may only involve an individual, where a form of collective redress exists.

I hope that the new clause is looked at sympathetically by the Government. It is a plea to be more proactive in respect of references—clause 107 refers to references—to secure collective redress where injustices are seen to take place. That is more likely to lead to the individual in a difficult position feeling confident that their position is being properly defended. That is why I come back to the role of trade unions, which provide the best advice on injustices in the workplace. I hope that we can make some positive progress on the matter. If this is not the appropriate place to do so, perhaps on Report the Government will look to strengthen the clause and consider how new clause 10 could add to it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

This is an extremely important clause, partly because the backlog has been so dramatic and only a tiny proportion of cases are resolved. It can take women years to get their cases heard or resolved. With a backlog of thousands of cases, clearing about 600 a year would be good going. I have not seen in the Bill or heard from the Minister that manifold extra resources will be given to fight women’s cases, or to provide for more tribunals or facilities so that the speed at which their cases are dealt with might be hastened dramatically. We need a dramatic step change. Such a change could be secured through representative action.

In June 2008, the Minister for Women and Equality clearly stated in the Government Equalities Office document, “Framework for a Fairer Future—The Equality Bill” that the Government would consider the case for representative action following the Civil Justice Council’s recommendation. In November 2008 in its final report to the Lord Chancellor, entitled “Improving Access to Justice through Collective Actions”, the council made the following recommendations:

“Recommendation 1 - A generic collective action should be introduced. Individual and discrete collective actions could also properly be introduced in the wider civil context i.e., before the CAT or the Employment Tribunal to complement the generic civil collective action.

Recommendation 2 - Collective claims should be capable of being brought by a wide range of representative parties: individual representative claimants or defendants, designated bodies, and ad hoc bodies.”

Those designated bodies could be the trade union, the EHRC or charities that represent people with disabilities. The Government have already had in-depth consultation, where representations were made that representative action should be introduced. They have had expert opinion clearly saying that representative action should be introduced. It would appear to the Liberal Democrats that the Government’s plan to look at the matter again is a delaying tactic. We do not need more consultation. We do not need to ask experts what they think. We have already had their conclusions. I would like to hear from the Minister why the Government are not taking action in the Bill to introduce representative action. It is the most obvious legislative way of dealing with the operation of employment tribunals and their jurisdiction.

Vera Baird (Labour, Redcar)

Perhaps the hon. Lady would tell me how that would work.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I could write to the hon. and learned Lady in more detail about how it would work. However, my understanding from trade unions I have met with is that, where appropriate, a representative group would consider the collective argument in a case as it applies to other individuals affected in the same way. It would then take the case, with those women, to the tribunal.

The case for representative action is strong and the reason is simple. The structure of discrimination law lends itself to representative action. The law protects someone from discrimination because of their protected characteristic, so if one person can demonstrate that they have been discriminated against because of that protected characteristic, and if others in the same company, or in similar employment, with the same protected characteristic, have, or are likely to have, been treated in the same way, a representative group such as a trade union council, the EHRC or a charity—charities are not mentioned in the new clause, but perhaps they could have been—could take representative action. Rather than requiring each individual to go through the long, complicated and difficult process of bringing a case to tribunal, we should let one person represent them all.

Mark Harper (Conservative, Forest of Dean)

May I unpick the hon. Lady’s line of argument? Is she arguing in favour of the new clause and representative action as a principle, is her argument driven largely by the delays and slowness of the existing tribunal system, or is she arguing both?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

In a sense, both. It would be disingenuous to say that the backlogs have not focused the mind on this possible solution. However, the solution has merits in its own right. It would be ludicrous and resource intensive to have identical, or almost identical, employment cases involving discrimination against people with protected characteristics, and not to seek collective redress.

Vera Baird (Labour, Redcar)

Has the hon. Lady applied her mind to what would happen in the case of a dispute between the claimant and the representative, or to what would happen to costs in the classic structure of an employment tribunal? Would they pass, or would they not pass? Those are important details. Perhaps she has some answers; it would be helpful if she did.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

If I had as many legal advisers as the Minister, I am sure that I would have a host of answers, but I am not so supplied. However, after this Committee, I shall seek those answers for her. I am sure that I can find them, but I do not have them to hand.

I think that the Minister knows that the argument is plain. My proposed system would be more efficient, would make it easier for individuals to access justice and would end the inequality that they suffer year on year. The greatest problem with equality legislation is not the legislation itself, which is often quite good, but people’s inability to get it applied in a fair and timely fashion. There is very little in the Bill that will address the extensive backlog of cases. That poses a huge obstacle. Representative action would be a dramatic step change and act as a greater deterrent to those who discriminate in employment and who can make cold-hearted calculations on the cost of their discrimination. If the employer knew that employees being discriminated against— especially if the discrimination is widespread—could take action fast with strong bodies to represent them in the fight against the employer, the latter might be deterred from discriminating in the first place.

Mark Harper (Conservative, Forest of Dean)

The hon. Lady is conflating two points. She said that those who discriminate would be deterred, if they thought that the people against whom they were discriminating could take action fast. That is the point about the resourcing and efficiency of the tribunal system and the need for cases to progress through that system. The second point—the one that references the new clause—is about whether those being discriminated against could bring a collective case. Those are not the same things. Even if representative actions could be brought, the process used to take them through the tribunal system could still get hugely backed up. The advocates might be more effective, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud said, but progress through the system could still be slow. They are two separate things. It will be helpful if the Minister breaks those down when she responds to the debate.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Again, in a sense, I am arguing for both. Were there to be representative action, that, in itself, would contract the number of cases that had to go to the tribunal. It would also act as a deterrent to an employer to know that the case could be represented by the union or by the EHRC, which is a strong advocate. It would work on all those levels.

Mark Harper (Conservative, Forest of Dean)

I would like to pick up on one point. The Solicitor-General has already asked how much the proposal has been thought through. Is it really the case that, if we allowed representative actions, we would reduce the number of cases? One argument is that—many members of the Committee, including the Minister, have said so—it would be difficult to bring a case, and there would be many barriers. If we allowed representative action—I am not necessarily arguing against it—would we not increase the number of cases? If so, we could make the system more difficult.

I ask about that only because I know—Committee Members will have to forgive me, because I am doing this only from memory—that the equal pay cases that have been brought, for example those related to local authorities, have involved a significant number of people. They have not exactly moved swiftly through the system. If we do not think about the processes in the tribunal system together with the provisions under the clause, we would be in danger of clogging up the system even further. We have to take the two things together, and I hope the Minister will do that when she responds.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Gentleman makes a good point. That is a call to arms both for resources and for the number of tribunals that are able to process cases, but I do not think it is an argument against representative action.

I do not want to detain the Committee any longer. New clause 10 is one of the most important proposals in the names of Government Members. With the best will in the world, with the Equal Pay Act 1970 and with tribunals, women are stuck in a queue so long they sometimes die before they get there. I think the Minister has to answer that question.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I rise to support the new clause, which, as has been said, is probably the single most important new clause in the Bill. We have debated many clauses and amendments in the Bill that are matters of principle, and we are none the worse for it. We have debated many clauses and amendments, which, in the short run, would not have much effect. Suppose that we had more black or ethnic minority candidates, which I would want. We would be lucky to get more than two or three new MPs out of it, given where we are in the current electoral cycle. The point about the new clause is that it can transform lives, potentially thousands of lives.

I say with confidence that no member of this Committee has ever had the experience, which thousands of my constituents have, of being a woman bringing up a family on the salary from one or even two low-paid jobs. They would not know or understand what a grinding, oppressive life that is. We turn to those same families, the same female head of families, and say that they are not good enough parents, they do not know where their children are and they are not contributing to society, when we, as the Government, could do something to address their immediate economic plight.

The arguments on representative actions are unanswerable, and I wonder what the Solicitor-General has to say. They will help people who are the most vulnerable and the least able, as individuals, even with the support of their trade union, to go forward. They would address the issue of low-paid women, and indirectly help to bring thousands and thousands of children out of poverty.

We can lecture the poor about their lifestyles, about being good citizens and about parenting, but we can, in this Parliament, in this Committee and in the Bill, do something to address the economic standards and hardship of too many women in cities up and down the land.

Mark Harper (Conservative, Forest of Dean)

On reading the new clause closely, I realised that it would compel the Minister to make regulations to permit either the Equality and Human Rights Commission or a registered trade union to be the representative body. Does the hon. Member for Hackney, North and Stoke Newington think that those are the only two groups that should be allowed or should lawyers be allowed to do so, much as in the United States with class action? Should it be just those two bodies? I do not speak as a lawyer.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I am not a lawyer either. I do not want to address the detail of the new clause; I am trying to address the underlying principles, about which I feel strongly. The Solicitor-General asked a Committee member how it would work. In a sense, the Committee is trying to address the principle of representative actions. We are quite happy if the Solicitor-General wants to set out the practical problems.

The new clause, which is probably the single most important new clause to the Bill, should address the harsh reality of the people among whom I live and whom I try to represent, as well as that of some members of my family. My concern with representative actions is that the issue might already have been traded away because of how antagonistic any clause of this kind is to big business.

I would not like to think that before the Bill came into Committee unspoken agreements were made that the issue would not be touched because it is too difficult for big business. Big business is undoubtedly going through a difficult time, but ordinary low-paid women are going through an even harsher one. If we, at this phase of the Administration’s time in office, cannot address those women’s issues, they are entitled to ask in any coming general election whether we are really thinking of them and addressing their position. I support the new clause.

Mark Harper (Conservative, Forest of Dean)

I shall be brief. I want to put the issue that I raised directly to the Minister. Obviously, we have been debating the principle, but we are also speaking specifically to the new clause and whether the Committee should include it in the Bill.

Subsection (1) would specifically compel the Minister to make regulations to permit only the EHRC or a registered trade union to take representative action. I want to probe on that point, although she will obviously reply on the clause specifically. If the EHRC and trade unions are to be allowed to represent a class, should lawyers be allowed also?

I ask because the provision opens up a change in our legal system that would probably generate widespread use of class actions, which do not tend to be brought in this country to the extent that they are in the US. Depending on the rules about funding such actions and whether they would be no win, no fee, the provision could drive a significant change—we could argue about whether that would be for good or ill.

We have seen what happened with the move to no win, no fee in personal injury cases, which made some significant changes. It has clearly had benefits for individual claimants, but one could argue that it has driven up the cost of insurance and caused cases to be brought, not necessarily for good reasons, that would not have been brought previously.

We could argue about that, but the provision would clearly drive significant change. When the hon. Member for Ayr, Carrick and Cumnock speaks to the new clause, she can say why she chose to make the EHRC and the trade unions the only two appropriate organisations, but I would like the Minister to comment on the Government’s views on the new clause and the possibility of allowing lawyers to bring class actions.

Also—I think the Minister referred to this—how would the new clause work on things such as costs? One issue in employment tribunals is that employers often are, or feel the need to be, legally represented while those who bring the cases are not compelled to be. However, in a significant representative action representing a class of people, both sides would effectively be legally represented. That might be appropriate as a way to bring balance to the situation, but I suspect that it would drive up the costs of the actions significantly.

It might be possible to argue that in bringing a representative action on behalf of a significant number of people the cost per claim would be lower, although the costs would be driven up. However, there would be the issue that I raised in an intervention on the hon. Member for Hornsey and Wood Green—whether the number of claims would be driven up.

Those are quite complex issues because—the Solicitor-General alluded to this in her replies to the hon. Member for Hackney, North and Stoke Newington—there are dangers in not thinking through and testing how something would work in practice, and not ensuring that all the pieces fit together properly. If representative actions are brought, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud would like, but no one has ensured that the rest of the system works, or thought through the costs or the workings of the tribunal process, there will be a danger of gumming up the works—to the detriment of everyone involved.

David Drew (Labour, Stroud)

Does the hon. Gentleman accept that one reason many people can never seek redress is that there is no mechanism, other than belligerently pursuing their cause? All hon. Members will have encountered people who ended up in an employment tribunal representing themselves, not knowing at all about the system and losing their case simply because they were inadequately prepared and could not make proper representations. That is what the new clause is about; that is why I think it is a matter of justice. I do not believe that it would necessarily lead to a huge explosion in the number of new cases. It would just mean that people were properly represented and could seek the right redress.

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman makes a good point—that may indeed be the case, but there is a need for thought and analysis of the likely effects. I know that to an extent they are unpredictable because the thought process involves trying to think through the different decisions that people could make. The question, I suppose, is whether there would be significantly more cases or whether the success rate would improve without the number being driven up significantly. To some extent, research and testing could be done on that, but it is obviously a judgment call. This needs to be thought through to establish what the impact would be.

To pick up the point that the hon. Member for Hackney, North and Stoke Newington made, fairly large companies have resources at their disposal and, even if they do not engage professional legal representation, they have skilled human resources professionals who are well versed in the relevant law, so there is some disparity in resources when an individual brings a case against a large company without representation and without the ability to fund it.

However, it is worth thinking about the impact of employment tribunals on smaller companies. The case has been made to me in my constituency that smaller companies—not those that have necessarily done anything wrong—fear the use of employment tribunals as a weapon by disgruntled employees. Such employees effectively have nothing to lose, because they need not fund professional legal representation and do not get hit with costs, but the company might have to spend a significant amount on defending itself—either on hiring professional legal representation or in management time, which is a significant cost for a small company.

A large company can send an HR person off to deal with the tribunal, and perhaps that will not affect the business, but if a small company’s owner-manager, or another senior person, is taken away for a significant time, the power relationship is sometimes reversed. Often, people settle cases that they think do not have merit because the cost of pursuing them—

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

The hon. Gentleman is making a valid case about small employers, but does not that happen now in individual cases anyway? What makes him think that a group of people would make things worse?

Mark Harper (Conservative, Forest of Dean)

I am simply responding to the quite proper point about power imbalance made by the hon. Members for Stroud and for Hackney, North and Stoke Newington. If we are to think the issue through, it is also worth thinking about the impact on smaller companies. The hon. Member for Ayr, Carrick and Cumnock is right: what I described happens now. I was making the point that the insurers of those companies often tell them to settle, regardless of the merit of the case, because the cost of defending it will be significant.

I am not sure—I was listening carefully to the hon. Member for Hornsey and Wood Green and she was not sure—what the effect of the measure would be. If it would drive up the number of cases, we need to think about those smaller companies that are concerned about the impact of employment tribunals. I am not saying that this involves all, or indeed most of, the cases, but cases are brought to tribunals that do not have merit and are being brought because the employee has little to lose. Cases are brought for reasons that perhaps are not as honourable as they might be.

That is not to disparage the very many valid cases, but we must consider the other side of the argument, particularly for those smaller companies for which what I have described is a serious concern. Cases have been brought to me in my constituency in which it is a concern. If we are thinking through a significant change—a number of hon. Members have said that it will be a significant change in the law—we need to think through all the consequences.

John Mason (Scottish National Party, Glasgow East)

It seems to me that the picture being painted by the hon. Gentleman is far too one-sided. We have heard from hon. Members across the board about the problems experienced by individual employees, who are often not well educated, do not know the law and so on. They are often up against very difficult employers, as I have seen myself. Yes, some employers might be in a difficult position, but surely there is a basic wrong that needs redress.

Mark Harper (Conservative, Forest of Dean)

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 (Labour, Islington South and Finsbury)

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.

Mark Harper (Conservative, Forest of Dean)

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.

Vera Baird (Labour, Redcar)

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 (Conservative, Weston-Super-Mare)

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?

Vera Baird (Labour, Redcar)

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.

Mark Harper (Conservative, Forest of Dean)

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?

Vera Baird (Labour, Redcar)

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.

Diane Abbott (Labour, Hackney North and Stoke Newington)

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?

Vera Baird (Labour, Redcar)

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 (Labour, Islington South and Finsbury)

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?

Vera Baird (Labour, Redcar)

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.

Mark Harper (Conservative, Forest of Dean)

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?

Vera Baird (Labour, Redcar)

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.

Ann Winterton (Conservative, Congleton)

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.’.

Vera Baird (Labour, Redcar)

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 (Labour, Islington South and Finsbury)

If my hon. and learned Friend is able to accomplish that, it will be a huge achievement and greatly welcomed on the Government Benches.

Vera Baird (Labour, Redcar)

I have always liked being congratulated before I have done anything, so I welcome those comments.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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.

Vera Baird (Labour, Redcar)

It looks like approbation all round, so we will be happy all afternoon.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

I understand that this is a rather complicated situation, but it is important. I welcome the Minister’s comments.

Clause 108

Mark Harper (Conservative, Forest of Dean)

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?

Vera Baird (Labour, Redcar)

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.

Clause 118

John Penrose (Conservative, Weston-Super-Mare)

I beg to move amendment 16, in clause 118, page 85, line 28, leave out paragraph (c).

Ann Winterton (Conservative, Congleton)

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 (Conservative, Weston-Super-Mare)

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

Mark Harper (Conservative, Forest of Dean)

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.

Vera Baird (Labour, Redcar)

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.

Mark Harper (Conservative, Forest of Dean)

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.

Vera Baird (Labour, Redcar)

That is right, I am told. It is about the reach. The key is that any recommendations made to benefit the broader work force and indeed the business would have to be proportionate to the case that is brought, otherwise it would be unlawful. That is a general principle that has found greater emphasis since we brought the European convention into our law. To answer the specific point about time, it would have to be a reasonable period. There might be more creative ways of doing something that a tribunal recommends. The sensible thing would be for the parties to get together first, discuss it and suggest it to the tribunal, which could then recommend it. If parties thought there were a better way forward, that approach would give the tribunal the opportunity to avoid recommending something that was perhaps less suitable.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Minister for her explanation, which I think she is part way through—it is clear so far. On that last point, in her experience, do tribunals tend to mandate outcomes or process? Is that a matter on which the Government have guidance and which they are able to influence, given that tribunals will want to be independent in many respects?

Vera Baird (Labour, Redcar)

Some typical recommendations that might help include taking steps to implement a harassment policy more effectively; providing equal opportunities training for staff involved in promotion procedures; and introducing more transparent selection criteria in recruitment transfer or promotion processes. Those seem to be fairly process-based. Those are the examples that I have, so I assume that they are typical and that that is the nature of likely recommendations.

The point is that if a problem that goes beyond the individual claimant has been found, it must be in everyone’s interest for the tribunal to recommend that it be put right so that the next complainant does not have to come and, as it were, clog up the works.

John Penrose (Conservative, Weston-Super-Mare)

I take the Minister’s point; I see what she is driving at. My concern is that if, for example, equal opportunities training was mandated, people might go through training and come out the other side having ticked all the right boxes, but not necessarily adhere to it afterwards. I am trying to make a point about the difference between mandating an outcome to be achieved by whatever means, which still leaves a duty and a burden on the organisation to achieve it, and mandating a process whereby, when it is complete, the organisation can say, “We did it, whether or not the outcome was as desired originally by the tribunal.”

Vera Baird (Labour, Redcar)

I suppose it is difficult to be able to say to a business, “Employ 10 more black and minority ethnic staff.” If the problem is in that territory, the limitation is probably to say, “Have better recruitment processes. Train your middle management with the intention of getting rid of that problem.” I do not think that there is anything to be concerned about. It is a pretty simple, logical follow-on to a finding in a tribunal that there is a problem and a recommendation on how best to put it right.

Mark Harper (Conservative, Forest of Dean)

May I pick up one more point? When we discussed clause 107 on class actions, or representative actions, the Minister said that proportionality would be important. I do not know whether it was in the consultation paper, but if there is to be a representative action, which by definition covers a lot of people, it follows that the appropriate recommendation might be more significant because it affects more people. Is that explicitly in the consultation document? It would be worth bringing that out so that it was clear to people, because it follows logically from what she said.

Vera Baird (Labour, Redcar)

The hon. Gentleman is right to say that it follows logically. There is a need for a proportion. If one is bringing an action on behalf of 2,000 people, one can reach a lot further and be more wholesale than if it involves just one individual, although if one is pinpointing the same problem for the 2,000 that the individual pinpointed, there might not be a need for anything bigger. Obviously, we ought to make that point in any consultation document so that people understand that a possible consequence of representative actions is that recommendations reach further or go wider. I hope the hon. Gentleman is satisfied.

Finally, the problem of recommending an outcome is that it might not be within the business’s power to guarantee achieving it, so that would be unfair. Another point is that by the time an employee gets to a tribunal with an employer, quite often the relationship has broken down and the employee has gone, so a recommendation confined to that employee has no effect at all. That is why it is better to have available the power to make recommendations.

John Penrose (Conservative, Weston-Super-Mare)

That was a clear and straightforward response from the Minister. She fully answered all the questions and I beg to ask leave to withdraw the amendment.

Clause 123

Mark Harper (Conservative, Forest of Dean)

Again, I hope to be brief. My question is simple. The clause makes it clear that if someone wishes to bring a claim for breach of an equality clause or rule, they must normally do so within six months of the end of their employment contract. Members of the armed forces have an additional three months in which to bring a claim, as they must first make a complaint under service complaints procedures. Is there any scope for that time limit to be changed if the service complaints procedure takes more than three months? The next clause, which is supplementary to this, allows that to happen for cases defined as non-standard.

I am sure that in the example of the armed forces, the delay would not be deliberate, but if the service complaints procedure took a long time—if, for example, witnesses or other people needed to participate in the process were on active duty on the front line—that might disadvantage the complainant. Will the tribunal or somebody else have the power either to extend the time limit or to decide that the case is non-standard under clause 124, so that the individual will not be disadvantaged and an unreasonable burden to accelerate the process will not be placed on the armed forces? That might not be possible or might affect the operational effectiveness of the armed forces.

Vera Baird (Labour, Redcar)

I will check whether that mechanism is available, but I suspect that one would put the application in to the tribunal anyway and agree not to action it to protect the time limit while the complaints process was under way. That often happens anyway in court cases where a time limit must be met: one does not take any further steps, but just fulfils the time limit. However, I will see in a moment whether I can get a better answer to the hon. Gentleman’s precise questions.

Clause 130

Vera Baird (Labour, Redcar)

I beg to move amendment 81, in clause 130, page 95, line 27, after ‘offence’, insert ‘under this Act’.

Mark Harper (Conservative, Forest of Dean)

I want to raise an issue about the clause, Lady Winterton, so I hope you will let me do so now. Then, I suspect, we will not need to debate clause stand part. The clause sets it out that, under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the explanatory notes say that

“the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.”

I suspect the Minister’s answer will be brief, but why is it that under the current law the burden of proof was not reversed in those cases, and why have the Government decided to change that? It may be self-evidently right to reverse it, and perhaps there were some very good reasons why that did not happen in the past. I am curious and it would help the Committee to know about the principles.

Vera Baird (Labour, Redcar)

As far as I know, it is just a historical accident that two bits of race legislation, which were added later, followed the relevant way forward and earlier bits did not. I think that is correct. If there is more to say, I shall write to the hon. Gentleman and he can read it.

Clause 138

Vera Baird (Labour, Redcar)

I beg to move amendment 82, in clause 138, page 100, line 16, after ‘of’, insert ‘or made under’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss Government amendment 83.

Vera Baird (Labour, Redcar)

I shall explain the amendment, which is slightly more substantial than the other amendments I have spoken to.

Clause 138 makes unenforceable the terms of any contract or non-contractual agreement that denies the individual the protection set out in the Bill. The amendments will make unenforceable contracts that deny individuals the rights given to them in secondary legislation under the Bill. They tidy matters up and make them more rational. I hope that is clear.