Clause 15 - Codes of practice: supplemental
Equality Bill
9:15 am
Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)
I beg to move amendment No. 48, in clause 15, page 9, line 15, leave out from ‘a’ to end of line 18 and insert
‘court or tribunal shall take such a code into account, or any provisions thereof, in any proceedings before it.’.
Clause 15(4) replicates section 47(10) of the Race Relations Act 1976. Our amendment would mean that courts and tribunals would have a duty in future to take the relevant code of practice into account when considering a case. The clause will mean that any court or tribunal would have to consider the code only if it were introduced as evidence by the complainant. That is particularly important given the fact that public funding, which we discussed at some length on Tuesday, is available only for representation in county court or sheriff court cases, not for hearings or employment tribunals, so the vast majority of people taking race discrimination cases to employment tribunals have no legal representation. One hopes that a solicitor would raise the relevant part of the code as evidence, but lay people do not necessarily work in the same way as solicitors, so it is possible that, as they are not so well acquainted with the law, the code would not be introduced as evidence. Given the lack of legal representation, it would be much better if the court or tribunal had an automatic duty to consider the code when judging a case.
Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)
I understand what the hon. Lady is trying to do, but quite apart from the Race Relations Act, the form of words used in clause 15(4) is very common in a large amount of legislation in respect of drawing a court’s attention to a code. It applies, for example, in health and safety legislation, where the regulations can be drawn to the attention of a court in civil proceedings even though they are not prescriptive. Although I understand what the hon. Lady is getting at, I am not sure that it would be particularly helpful to require the court to act on the code, because the code’s general terms may not apply to particular circumstances. I do not share her anxiety that the Government’s wording will somehow mean that the code will not feature in a case. I think that it is clear that the code will feature in a case. All that is required is for someone to say—the court could do this of its own motion—“Well, there’s the code. Let’s look at that to see how it helps us in determining the case.”
If we took the route that the hon. Lady suggests, the provision would become prescriptive and would not be particularly helpful. As I said, the Government’s wording is a well tried formula. I have not encountered the problem of its leading to the code in some way not being relevant to court proceedings. We must bear it in mind that the code will not be able to cover every contingency. From that point of view, it is open to people to say, “Well, the code may say this, but the circumstances of the case are different.” The problem with the amendment is that it could prevent that from happening, which would not necessarily be fair or provide a good solution in the sort of proceedings with which we are dealing.
Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)
I fear that the hon. Gentleman may already have made my points, but I shall still give the hon. Member for Romsey the Government’s explanation as to why the amendment is unnecessary. The drafting in the Bill is designed to carry forward the requirements and legal effect of the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 2005, which oblige a court or tribunal to take a code issued by the relevant existing commission into account in deciding matters before it. I accept that the drafting in clause 15 differs from that in the Acts that I have mentioned, but the legal effect is the same.
Clause 15 provides that a code of practice issued by the Commission for Equality and Human Rights shall be admissible in evidence in criminal or civil proceedings, and that a court or tribunal must take a code of practice into account in any case in which it appears to the court or tribunal to be relevant. However, the code needs to be presented as evidence first. Thereafter, it is for the court to decide whether it is relevant. If the court or tribunal concludes that it is relevant, it is obliged to take the code into account.
A code of practice is designed to ensure or facilitate compliance with a provision of the equality enactments or to promote equality of opportunity. It is expected to describe the ways in which statutory obligations can be met. Therefore, it would be available to parties to a dispute to point to compliance or otherwise with a code of practice as evidence of the intention or otherwise to comply with the legislation.
It would not be practical to require a court or tribunal to take into account a code of practice if it had not been presented as evidence. A court or tribunal may simply not be aware of the full range of codes, so it is incumbent on the parties to bring a code to the attention of the court or tribunal, which they would be likely to do if it lent support to their argument. It is unnecessary and impractical to place a direct obligation on courts or tribunals to take codes of practice into account in any proceedings before them. Consequently, I ask the hon. Lady to withdraw her amendment.
Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)
I have listened carefully to the Minister. The amendment was suggested to us by the Commission for Racial Equality, which clearly has concerns that there may be problems with the Bill. At this stage it would probably be more helpful to withdraw the amendment; I will try to find some more examples to aid the debate on Report. I beg to ask leave to withdraw the amendment.