Deregulation Bill

Lord Beecham Excerpts

Tuesday 3rd February 2015 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Equalities and the other interests recorded in the register. I am sure that the whole House will join the noble Lord, Lord Low of Dalston, in sending our very best wishes to my noble friend Lord Lester of Herne Hill as he recovers from surgery. My thanks are redoubled because my participation in this debate was demanded by my noble friend, who pointed out to me what I had said in the debate on the Equality Bill in 2010. Some of your Lordships may wish that their words were not so remembered, but the encyclopaedic mind of my noble friend Lord Lester suddenly pointed out to me—in these words, I think—that, “Our Government are doing something the opposite of which you argued so forcefully in 2010”. He reminded me that I had urged then that,

“not only should due regard be paid to eliminating discrimination but that there should be a much more proactive element”.—[Official Report, 27/1/10; col. 1492.]

I spoke on what is now section 124 of the Equality Act 2010, when, as shadow Chancellor of the Duchy of Lancaster, I pointed out the deficiencies in the then clause.

In many ways, the noble Lord, Lord Low of Dalston, has just repeated what I felt was a brilliant summary of the criticism of Clause 124, expressed by both government and business representatives. He gave four telling points. Against that background, I can well understand why my noble friend wishes to remove the power of employment tribunals to make recommendations to employers and other respondents in cases where there has been a finding of unlawful discrimination, harassment or victimisation but where the claimant no longer works for the employer.

There is a better way, which I tried to suggest at the time to the Labour Government, but, sadly, they refused to listen on that occasion; I hope that the Opposition are listening carefully now. We need to retain but clarify the power in Section 124. I very much hope that noble Lords will agree that there is a need for reform rather than abolition. Those are the circumstances in which I put my name to the amendment tabled by my noble friend Lord Lester of Herne Hill.

There are, however, problems. Undoubtedly, this was discovered by the then Labour Government. I think that the noble Baroness, Lady Royall, dealt with the matter from the Government Benches at that stage. As the equality and diversity commission has pointed out, this amendment could lead to a tribunal having to hear additional evidence and argument in order to decide whether the adverse effect of the discrimination on those other than the employee bringing the case was serious. I have no wish to cause such complications.

My noble friend has already proved himself to be so amenable that I think that the noble Lord, Lord McKenzie, has gone away to recover, as I cannot see him in the Chamber. My noble friend, assisted by the clerks—who I hope might assist us once again—bent over backwards in trying to find out how Section 124 could be further improved, particularly to avoid the risk I mentioned and to address the criticisms—those four key issues—which have been so clearly set out. The noble Lord, Lord Low of Dalston, sought to deal with them, but the criticisms remain. They concern the way in which the wider recommendations power has been used to date and its effect on businesses. One way to tackle the issue would be to limit the power of the tribunal so that it cannot recommend a respondent to take steps which are disproportionate. The commission has suggested that that might be a way forward. It also recommends that Section 124 be improved by making a failure to comply without reasonable excuse an unlawful act for the purposes of the Equality Act 2006.

In previous debates, I have urged that a clear enforcement mechanism should be introduced. I repeat what I said in the Chamber on a previous occasion, as these words were repeated to me by the noble Lord, Lord Lester. Speaking from the Conservative Benches, I said:

“Of course we believe that the provisions must be enforceable. If an organisation has been acting illegally and subverting the equality provisions, it should have to obey the recommendations”.—[Official Report, 27/1/2010; col. 1470.]

Of course, the Government did not pay attention. The noble Baroness, Lady Royall, said that it would be inappropriate to introduce enforcement powers. However, we have to think about introducing to or leaving on the statute book a power with no enforcement mechanism at all. I hope, therefore, that my noble friend will come forward with the answer. I can hardly wait to hear his speech.

[Lord Beecham (Lab)]

My Lords, first, I endorse very warmly the amendment moved by the noble Lord, Lord Low, and supported by the noble Lord, Lord Hunt. They make a powerful case. I hope that, after also hearing from my noble friend Lady Thornton, the Minister will be persuaded to give some ground, as what they say is very compelling indeed. However, this may be a little academic given the fact that there has been an 80% reduction in the number of cases brought to employment tribunals since the charges were imposed by the Government last year. It seems to me that we are seeing the whole system being rather rapidly eroded. I hope that the Minister, in reporting back to his colleagues about the outcome of this debate, whatever it may be, will invite them to look again at the status of employment tribunals, and the great reduction in cases being brought, to see whether they intend to allow this nearly 50 year-old provision to wither on the vine, because that is the impression that is being widely—and, I think, rightly—inferred from the history of what has happened over the past year or 18 months.

[Baroness Thornton (Lab)]

My Lords, it is very nice to be back discussing equalities matters opposite the noble Lord, Lord Hunt. He did a brilliant job helping to put the Equality Act 2010 on the statute book. We were very pleased to work with him at that time. I join the noble Lords, Lord Low and Lord Hunt, in wishing the noble Lord, Lord Lester, better and well for the future.

The noble Lords, Lord Low and Lord Hunt, have explained perfectly well what the issue is: in future an employment tribunal would only be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on the claimant in the case. That would mean that the potential to reduce discrimination against the employer’s wider workforce would be lost in the majority of cases. The EHRC has powers of enforcement on employment tribunal decisions. It was very clear on this in its evidence to the Joint Committee scrutinising the Bill. It said that it strongly disagreed,

“with the proposal to remove employment tribunals’ wider recommendation making powers”.

It said that,

“it is too early to judge the effectiveness of the power which has been in force only over the last three years. The available evidence suggests that the power has been used proportionately, and that there are important clear benefits for all concerned (including employers and employees) in exercising the power to clarify necessary remedial action, and this helps to prevent further discrimination and to reduce litigation”.

This power has not been in place long enough for evidence to suggest that it is either a burden on business or not effective enough. Those are both arguments that the Minister has used in the course of these discussions.

On these Benches, we regard these amendments as very important. We believe that we have to continue to address the concern that the law should be effective not only in providing redress for victims of unlawful discrimination, harassment and victimisation, but in preventing those unlawful acts from occurring, and in helping employers to comply with their duties. I will give one example that illustrates very well the importance of this law. Last year, the Metropolitan Police had to pay a female firearms officer who featured in Scotland Yard’s Olympic poster campaign damages of £37,000. Those damages were levied by an employment tribunal after she was bullied and victimised for being black. The tribunal branded Scotland Yard as “malicious” and “vindictive” in its treatment of Ms Howard and told the Met to review all internal complaints of discrimination made since 2009. I stress that. I have no idea whether the Met has carried out and complied with that recommendation. I hope that it has and that it is taking remedial action, because it was heavily criticised at the time.

The point is that the tribunal’s power to make these wider recommendations is under threat from the Deregulation Bill. If the Minister wants to take this amendment away and come back that is fine with us. But this is very important and I think that it is the right thing to do.