Enterprise and Regulatory Reform Bill

Baroness Oppenheim-Barnes Excerpts

Monday 14th January 2013 Grand Committee

[Baroness Howe of Idlicote]

My Lords, I would like to say a brief word on this. I am particularly glad that my noble friend Lord Low has spelt out some of the concerns. It is particularly sad that we do not have with us the noble Lord, Lord Lester, who was so effective in designing the Sex Discrimination and Equal Pay Acts and who watched them through all their additional adaptations and changes. If anybody knows anything about the legal side of this, it is the noble Lord, Lord Lester.

I must admit that I was hoping for rather more information on the first debate, but I decided to say nothing and to see what happened. Both this and the first debate suffer from what I would call a reflection of the debates that we had on the general duty and on removing the duty to promote good relations. I find it very sad indeed that we have reached this situation after only two years, if that. It has taken so long to achieve advances in the area of equal opportunities, equal treatment and fairness, and two years is far too fast. One should let it be bedded in and create an atmosphere that can facilitate a rather faster flow towards equal opportunities on race and different religions, between men and women—whatever it happens to be. Had we let such an Act settle in for another five years, it might then have been worth while having a go.

We are being asked simply to strike out these sections. I may of course find that the noble Baroness is able to totally convince me with the detail that she gives that this really is not necessary. I hope that there will be an arrangement that will enable the noble Lord, Lord Lester, to have a say at a later stage in the debate on this subject. Frankly, without it we would be doing ourselves a disservice, quite apart from anything else.

[Baroness Oppenheim-Barnes]

My Lords, I hope that this is not too light a note, but this is an apology that I owe to the noble Baroness, Lady Howe, of some 40 years standing. I remember that she wrote to me making a complaint about the Caledonian girls. I do not know whether noble Lords are old enough to remember that there were pretty dolly girls in the advertisements. The noble Baroness will remember that she found them offensive. I found myself on “Any Questions” when the whole matter erupted again and I said that I rather liked to see these nice brisk young girls. “Who wants to be served by old bags?” I said, only to receive at least 20 letters from members of the public saying, “You’re on the radio. How do we know that you’re not an old bag yourself?”. At this point I apologise.

[Baroness Stowell of Beeston]

I do not know how to follow that.

I join other noble Lords in wishing the noble Lord, Lord Lester, a speedy recovery, although I know that had he been here he would not have been speaking in support of the Government today. I know that he would have brought his own great expertise to these discussions and I am sure that he will return to us very soon and we will have the benefit of his expertise. Certainly, he was kind enough to give me some of his time over the past few weeks to discuss this matter in great detail and I am very much aware of his position on this and the history of his involvement over a long period.

Clause 58 does not diminish people’s right to equal treatment or their access to justice where they believe they have encountered discrimination. Let me be clear: repeal of the obtaining information procedure will not reduce an individual’s right to pursue a discrimination case or the remedies available to those who are successful. Our intention is to simplify the whole pre-claim process so that all parties achieve the right outcome in the most straightforward and cost-effective way. I will discuss in more detail what we propose as an alternative before I sit down.

I will not rehearse the whole process involved in obtaining information except to make the point that Section 138 provides that Ministers must prescribe forms to be used for the procedure in secondary legislation. Business and the Government now believe that, over time, enshrining this process in legislation has led to it being out of date, burdensome and to some extent one-sided.

Let me be clear from the outset that not one single employer or business organisation told us that they saw value in the questionnaires. I know that the noble Baroness, Lady Thornton, and others requested information to that end. I will happily ensure that that is provided after today’s debate. As noble Lords have said, this process has been in anti-discrimination legislation for nearly 40 years. I must say to the noble Baroness, Lady Howe, that while I know that some of her remarks were about more recent legislation, this practice of obtaining information is now very much something that has been with us and has been tried for a very long time, but I would add that the process of obtaining information is only in anti-discrimination legislation; it is not replicated in other areas of employment law.

During the past 40 years, much has changed. The procedure was initially created to help to level the playing field between individuals and employers or service providers through a simple question and answer process to help to establish basic facts to determine whether discrimination had occurred. This was necessary in 1975. At that time, no one had brought a sex discrimination claim or knew whether it would be possible to do so successfully without any assistance. However, in recent years, 10,000 to 20,000 have been accepted by tribunals every year.

In 1975, when the legislation was being debated in Parliament, the Government included the obtaining information procedure, because they did not wish to make changes to the arrangements governing the burden of proof. As was said then, the procedure was,

“likely to tilt the balance somewhat the other way”.

The Government continued that they were,

“enabling the woman complainant … to … write a letter or to use a prescribed form”.—[Official Report, Commons, 18/6/1975; col. 1603.]

Since then the legislation on the burden of proof has changed to make it explicit that the complainant has to put forward only facts from which discrimination could be deduced, and it is for a respondent to prove that their actions were not, in fact, discriminatory. From the point of view of a respondent, it therefore seems that both aspects of the law are now, in their minds, stacked against them. Employers believe that over time the process has become heavily legalised and is frequently misused as a means of gathering detailed information, whether it is relevant or not. Such information is frequently sought in cases where the individual has already taken the decision to take their case to a tribunal and is simply forcing as much pre-claim disclosure as possible.