I beg to move, That the Bill be now read a Second time.
It is with great pleasure that I present the Bill to the House. Its purpose is self-evident in its title. If it is successful, it will address an imbalance between England, Wales and Northern Ireland and Scotland. The Scottish Parliament has recognised that failure to provide assistance to victims of employment discrimination contravenes article 6 of the European convention on human rights, which establishes the right to a fair hearing. In Scotland the problem was tackled by extending legal aid, but I believe that there is a viable alternative, which I propose in my Bill.
Citizens Advice gets to the heart of the issue in a simple statement:
"Citizenship requires that rights granted by Parliament must be enforceable. Erecting ever-tighter barriers to justice through legal aid eligibility tests and rationed supply of subsidised services undermines citizenship."
I stand for social justice above all else. There can be no principled justification for failing victims of discrimination. We cannot continue to confer rights and not provide the wherewithal to exercise them: access to justice should be—must be—a fundamental right.
A veritable mountain of evidence demonstrates the need for my Bill. Despite 30 Acts, 38 statutory instruments, 11 codes of practice and 12 European directives and recommendations, widespread employment discrimination persists. That the legislation is so complex and inaccessible is one of the strongest points in favour of the Bill.
One way of dealing with the problem would be for the Government to review the law of discrimination to make it much simpler. Discrimination law has grown piecemeal, which has led to a large and complex body of law. Would it not be better to review the whole area?
I would not oppose such a review, but in its absence we need to do something to ensure that the victims of discrimination have some way of exercising their rights and challenging that discrimination. That is what the Bill is intended to do.
Unfair dismissal accounts for just over a quarter of all employment claims in recent years—a proportion that has remained fairly constant. Such cases are the most successful, whether they reach the tribunal or are settled by conciliation: almost 60 per cent. are successful, of which 47 per cent. are settled by conciliation. Discrimination claims are increasing, however, from just over 11 per cent. of claims in 2002–03 to more than 13 per cent. in 2004–05, with the largest increases occurring in equal pay and sex discrimination claims. More than 10,000 claims went to tribunal in 2004–05. In 2001, there were more than 1,434 pregnancy claims alone.
It has been well documented that women continue to earn significantly less than men—18 per cent. less in 2003—and they are concentrated in lower-paid jobs, but that is far from their only disadvantage in the workplace. New research published by the Equal Opportunities Commission in February this year illustrated the shocking fact that, each year, approximately 30,000 women lose their job as a result of pregnancy; this includes being sacked, forced to leave or made redundant. Only a quarter of women surveyed did not experience any problems.
That is only the tip of the iceberg. The EOC research indicates that the majority of women do not pursue a claim because it is so difficult and costly and, in some cases, because they are not fully aware of their rights. Two BBC website readers described what happened when they told their employer they were pregnant. Clare, 29, from Bristol, had been working for an internet company as a project manager for six months when she became pregnant. Off sick because of morning sickness, she phoned work. She says:
"I was told that I would have to see the manager on Monday but on the Sunday I was called at home by the managing director who said I didn't have a job to go back to . . . . They said that as I had only been with them for six months, I had no rights", and
"if I tried to sue them they would say that I had been sacked because I didn't fit in."
I am sorry, I do not have those details, but I can try and get them. If my hon. Friend will be patient, I shall come to trade unions later in my speech.
Sarah, aged 28, from London had worked in public relations for eight years and for her current employer for eight months when she became pregnant. Within a fortnight she was called to a disciplinary meeting and given a list of grievances. She reported:
"I was told that they would decide over the next fortnight whether I would be able to stay."
Two weeks later she was sacked. Her solicitor advised her that she had a good case for sexual discrimination but would need to find between £7,000 and £10,000 to fight it.
Similarly, the Birmingham Evening Mail reported in April 2003 the case of Carol Bonehill, who received a card from work congratulating her on the birth of her baby, only to find that her P45 and a dismissal letter were enclosed. The northern complainants aid fund took up her case.
I used to practise regularly in industrial tribunals. My hon. Friend mentioned someone who was told that the case would cost £7,000. Does my hon. Friend agree that the problem with industrial tribunals is that lawyers have turned them into a feeding frenzy for themselves, not for claimants?
I entirely agree. One aspect of the Bill, to which I shall return, is that it does not put matters back into the hands of lawyers, but introduces a different system of advice and support.
Although my hon. Friend said that he did not have all the information about the representation in those cases, one of the main issues is trade union representations. Unions have made great strides, but does my hon. Friend agree that the Government should consider improving the competence of trade union representatives? Does he recognise that a major issue is representation in non-unionised work forces, which are increasingly common?
I agree. I wish more people were union members. As I shall show, large parts of the work force, especially the most vulnerable workers, are not unionised. We have a duty and a responsibility to protect those workers as well.
On the case taken up by the northern complainants aid fund, although the employers denied dismissing the woman for being pregnant, she won her case at tribunal. The case was instrumental in prompting the equal opportunities investigation that I mentioned.
Citizens Advice told me about the case of Jean, a nursery worker who was eight months pregnant and a single mother-to-be when she sought advice from her local citizens advice bureau. Her employer of two years had been paying her less than the national minimum wage, had been making illegal deductions from her wages in respect of her attendance at antenatal clinics, and had never provided her with a written statement of her terms and conditions. Shortly before Jean was due to start her maternity leave, she had been summarily and unfairly dismissed—at a time when the Government are promoting the new deal to enable single mothers to go to work, instead of relying on state benefits. Here was a woman who had a job and lost it on spurious grounds.
The treatment of that young woman highlights other issues. It is not just about losing one's job. Unfair treatment can take other forms. A young pregnant woman who sought advice from a citizens advice bureau in London was working for a cleaning company. After she fell ill because of her pregnancy, her employer had suggested a reduction in her hours. She asked whether that would affect her maternity leave or pay, and her employer stated that it would not. However, shortly before the expected date of birth, her employer told her that she no longer qualified for statutory maternity pay as her earnings were now below the qualifying level. Clearly, the woman had been atrociously misled. We can only imagine the impact that the loss of pay would have at a time when a new baby is due.
Both the last two cases highlight important issues for wider social policy. We have made huge advances in ensuring access to antenatal care. Research has proved time and again that that is essential to the well-being of mother and child. If women suffer loss of wages by attending hospital appointments, we risk that progress being set back decades. We are committed to ending child poverty. Maternity pay is a crucial element in that quest, yet we see women being manipulated into losing that right.
Discrimination continues after maternity leave is over. The employer of a woman who approached a citizens advice bureau in Dorset in May 2000 had refused her request to work part-time on her return from maternity leave, on the grounds that there was no part-time culture in the firm. A citizens advice bureau in Wales reports the case of a woman working as a mechanical draughtsperson, whose employer had refused her request to return to work from maternity leave on a part-time, job-share or reduced hours basis. She felt pressurised into resigning and wrote to the company to say so, but received no reply. When she telephoned to try and discuss the matter, she was told that her employers were too busy to talk to her.
Bringing a case is costly and beyond the resources of most complainants. A three-day tribunal in London costs between £15,000 and £40,000.
My hon. Friend is making a good argument for workers joining a trade union. One of the most significant benefits of being a trade union member are the excellent legal services that unions provide. I defy anyone to get the same level of legal protection from a firm of lawyers for the same amount of money as they pay for trade union membership. We should encourage people to join and make access to properly recognised unions easier.
If workers choose not to join a trade union and not to avail themselves of the services that it provides, they clearly will not get them. I do not see why we should pass legislation to give them services that are available but which they have chosen not to take up. If members of a work force want those services, they should take the advice of Labour Members and join a union or some other organisation.
The hon. Gentleman clearly does not support access to justice for all. I do, and I hope many of my colleagues agree with me. We will find out later.
Tribunals in London cost between £15,000 and £40,000. Evidence of intimidation and unjustified threats has also been revealed by Citizens Advice.
I am interested in the figures that my hon. Friend quotes. In complex equal pay cases where barristers are employed and legal opinion must be obtained, such figures may pertain, but in my experience in some cases the tribunal will find in favour of the applicant because they are by definition unfair. Is it not possible that the Bill will be welcomed by lawyers in anticipation of higher fees for themselves?
One of the main selling points of the Bill is that it will do precisely the opposite, by setting up a system of advice and representation in which lay people and specialists in the subject who are not lawyers will also be involved.
Revised procedural rules introduced in 2001 increase the costs that can be awarded from £500 to a massive £10,000. Although there is little evidence that high awards are being made, this is not deterring employers from using the threat to intimidate complainants. Northampton citizens advice bureau was acting for a woman who had been dismissed two days after informing her employers that she was pregnant. She received a letter warning her that they could seek costs against her. Despite her strong case, she withdrew her claim. We can only speculate why more than half the sex discrimination claims were withdrawn in 2004–05.
With his experience in the union, my hon. Friend has probably dealt only with a unionised work force. I am speaking about the huge number of people who are non-unionised. Perhaps my hon. Friend does not know about their experiences out there, but they are what I am describing.
I accept that many employers use such an approach as a threat against the applicant, but the applicant can always ask for a pre-hearing, or the tribunal chairman can have a pre-hearing to assess whether the case is frivolous and vexatious. During my long experience, I dealt with just one case during which a chairman applied a costs warning. Such a course of action is open to an applicant whether they are legally represented or they go themselves before a chairman.
My hon. Friend makes an important point, but some of the people I am discussing here number among the most vulnerable groups in society. They have the least support available to them, and they are also probably among the least well informed about their rights.
Perhaps my hon. Friend will comment on the role of community law centres in giving advice and in providing representation in employment tribunals. Such advice can often put people's minds at rest about pursuing an employment tribunal case and the associated potential costs.
Community law centres play a very important role, but the problem is that many of them rely on funding from local councils or other bodies, and such funding is not always secure. In fact, because of the funding situation my own law centre in Bradford no longer has an employment lawyer. The case for this Bill is that we need a solid system throughout the country that enables people to get advice and help, without having to rely on law centres obtaining funding from local councils or the Law Centres Federation. That said, law centres do play an important role.
I have a genuine question that I should like to put both to my hon. Friend and to the Government, and perhaps I can expand on it later if I am fortunate enough to catch your eye, Madam Deputy Speaker. How many cases actually fall beyond the scope of the unionised work force and of legal aid? As it stands, I have no idea whether we are talking about a tidal wave of such cases, or just a few individual ones that are slipping through the net. If there is not a mass of such evidence, how relevant is this Bill?
I want to make just one further point, concerning the community legal service. I have compared the terms of reference of the body that my hon. Friend seeks to create with those of the CLS, and there appears to be a lot of overlap. Does he accept that in effect, he will be duplicating the CLS's role, and if so, what, in his opinion, is the future of the CLS?
The CLS's role will not be duplicated. The fact is that there is no nationwide system that provides assistance to victims of discrimination. We need such a system because the help available is very patchy; indeed, in many areas it is often non-existent. In Bradford, for example, employment advice, assistance and representation are now non-existent. My Bill will not lead to duplication; rather, it will set up a new system that will enable people to get proper access to justice, wherever they happen to live.
As I said, we can only conjecture as to why more than half of sex discrimination cases were withdrawn in 2004–05. My hon. Friend Huw Irranca-Davies asked for some figures, which I can provide. The Equal Opportunities Commission estimates that 1 million women will experience discrimination in the next five years. The snapshots that I have outlined today conceal the vast amount of discrimination and misery that is experienced at what should be a happy time for such women. Moreover, there is also a loss to the economy. Replacing these women costs industry £126 million, so such practices are not only in many cases illegal and immoral, but uneconomic.
It may surprise the House to learn that such evidence is not entirely partisan; it comes from many unexpected and independent sources, such as the Industrial Society and the Policy Studies Institute. Even the CBI has acknowledged that a problem exists. On
Of course, it is not only women who suffer employment discrimination. Disabled people are nearly nine times more likely than non-disabled people to be out of work and claiming benefits. Unemployment rates for ethnic minorities are 10 to 15 per cent. higher than for the white population; in some regions, they are more than 20 per cent. higher. Racial discrimination still features extensively.
I am particularly grateful to my hon. Friend for his lucid presentation of his Bill. He mentions discrimination against disabled people—a problem that has long since been recognised. Does he know the views of the Disability Rights Commission on this matter, and has it expressed an opinion about his Bill?
No, I do not know its views, but to be frank, in general, equal opportunities bodies are not in favour of the Bill. Funding for such a system would come from their existing budgets, and they are not going to support a Bill that would reduce their budgets.
That was a very helpful question and reply but I remain a little confused. As I hope later to discuss, quite a lot of taxpayer-funded organisations can already provide advice for those who need to go to employment tribunals. What on earth is the point in setting up this new organisation, cannibalising funding for the existing organisations and shifting it to another layer of bureaucracy, just so that the new organisation can provide advice that is already being provided? That seems a bizarre idea.
As I said earlier, the advice available for people who have suffered employment discrimination is very patchy. The equal opportunities bodies are not providing a national system of access to justice, and it is not a question of cannibalising funding for them. The point that this House must address, and which I shall deal with later, is that such bodies have not been spending enough of their budgets on helping those at the chalk-face who are suffering from employment discrimination. We need to ensure that complainants have the access to justice that they currently lack, despite the existence of equal opportunities bodies.
If the existing bodies, which receive a lot of money from the taxpayer, are performing as poorly as the hon. Gentleman suggests, what are they doing with their time?
I am sure that those bodies do a lot of important work in raising awareness of such issues, and so on, but I am not here to speak about what they do or do not do, except in the context of providing representation for discrimination complainants. Those bodies could doubtless answer the hon. Gentleman's questions perfectly adequately, were he to approach them.
The Bill's supporters cite the fact that a very small percentage of the current commissions' budgets—about 2 per cent. for the Commission for Racial Equality, just over 3 per cent. for the Equal Opportunities Commission, and 5.5 per cent. for the Disability Rights Commission—goes towards directly funding discrimination cases. But is it not true that the commissions also give a lot of money directly to bodies such as racial equality councils and local community groups, so that they can fund and support those involved in discrimination cases? Do they not also spend a significant part of their budgets on carrying out formal investigations, such as the recent inquiry into discrimination in the Prison Service? As in the case of the investigation into the death of Zahid Mubarek, we can sometimes be talking about loss of life rather than discrimination, so if 25 per cent. of the budget were taken away, would it not amount to a real hit on that sort of work?
In response to my hon. Friend, the funding of racial equality councils can be quite precarious: it is supplied on an annual basis and can be taken away at any time. If the leadership complexion of the Commission for Racial Equality changes, so can its priorities. I do not believe that taking some funding away to establish the proposed board would affect the organisation's major investigations. I would argue that there is room within the budgets to accommodate my proposals as well other work in the field.
Clause 3(3) effectively says that the Lord Chancellor must pay however much money is demanded by the board that the hon. Gentleman wants to establish. The money thus comes from the budgets of other organisations that we have mentioned, yet the hon. Gentleman claims to be worried about the precariousness of their finances. Could not the provision have the effect of destroying such organisations?
I do not accept that argument at all. The important investigative work of these organisations will continue. I would like to make some progress with my speech.
I should like to provide a couple of examples to illustrate my argument. The first case relates to my own constituency and underlines two important points. First, it not only demonstrates a vivid picture of discrimination, but was directed against young Muslim women, one of whom was in her first job. Younger workers are particularly vulnerable. Secondly, it illustrates how the specialist help provided by the citizens advice bureau—the body contacted in the first instance—gave the workers the necessary confidence to take the case forward.
Four Asian young women were awarded nearly £50,000 in July 1998 in what was described as one of the most serious cases of racial discrimination against young women ever to come before an industrial tribunal in Britain. The tribunal heard an appalling catalogue of racial discrimination. The girls' wages were reduced, while white workers were moved to other jobs. Their terms and conditions were different from those of the white employees and they were systematically bullied and threatened by their white supervisor to the extent that one of them was called a "black bitch". One had been employed as a supervisor and had assumed the duties of the head supervisor, when the latter was absent, yet when the position became vacant, a white woman from another area of the company was given the job.
Asian workers in this company were instructed to undertake additional menial tasks, from which white workers doing the same job were excused. They were forbidden to speak to each other in their own language. It had been custom and practice to allow Muslim workers to carry holidays over, but that was abruptly changed, leaving the Asian women in a lottery in which only two of them could take holidays.
As the situation escalated and two of the young women were sacked, they sought the advice of the citizens advice bureau and were referred to the northern complainants aid fund. Although the company had a staff handbook, it was not readily available to the work force. White staff had time to read it, but Asian staff had to lose piece-rate pay to do so. The managing director was unaware of the CRE code of practice and staff had no training or understanding of their own equal opportunities policy. The judgment entered on their cases stated:
"Rarely have we seen a case where there has been so much evasion and contradiction. It is clear the respondent set out to smear the applicants."
The second case relates to a national company. In April 2003, a south London employment tribunal found that the UK's largest rental company, Hertz, racially discriminated against Howard Morant, a black supervisor at its Victoria branch in London. For 15 months after he was employed, he was kept on a lower wage than white workers doing the same job, and less experienced workers were promoted while he and other black employees were passed over. During the course of the hearing, it emerged that, although the company claimed to be an equal opportunities employer, it had failed to train its managers in race equality. As part of the tribunal's decision, Hertz was required to provide training in race equality for its managers in Victoria and other London branches within three months. It applied particularly to managers responsible for recruitment, selection and staff appraisals.
The provision of such training is one of the main recommendations in the CRE code of practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment, which was first published in 1983. Between 1983 and 2003, the CRE spent vast amounts of public funds encouraging employers such as Hertz to comply with the code and the law. Yet in the Hertz example, a single case brought by an employee—I emphasise, a single case—achieved greater compliance than the CRE managed in 20 years.
Those two cases are appalling and absolutely indefensible, but they also illustrate the fact that both were brought before an industrial tribunal, were successfully prosecuted through it and with successful outcomes. I cannot quite grasp—I would be grateful if my hon. Friend elaborated—the significance of the fact that both these cases were successful without the Bill being in place.
I am happy to respond to my hon. Friend. Both cases were taken up by the northern complainants aid fund, about which I shall say more later. That organisation no longer exists because its funding was cut. That is why I want to establish on a statutory footing a right to representation, support and advice, which will not be subject to whims of funding bodies that can pull the rug out from under one's feet at a moment's notice.
My hon. Friend's ambition for the Bill is entirely laudable and I recall speaking in the House several years ago about deserts of advice in parts of mid-Wales, but the issue is how best to achieve the objective without sacrificing other sectors. Could it not be argued that there should be a role for the Legal Services Commission and that the Government should seek means of filling in the gaps in the desert rather than fitting a superstructure on top, which might jeopardise other organisations? I do not want mid-Wales to have a wonderful oasis of legal advice at the risk of what is going to happen in Cardiff, Central. That is my fear.
The point of the Bill is not to have deserts and oases, but to establish a constant pattern of support across the country, which does not exist at the moment. If we leave it to existing bodies, I do not believe that we will see much further action taken: it has not happened so far. If the Scottish Parliament has addressed the issue by extending legal aid, is it not incumbent on our Parliament to extend similar rights of access to justice to complainants of discrimination in this country?
But would my hon. Friend accept that, as he said in his opening remarks, Scotland has dealt with the matter by increasing funding and legal aid? There may well be a case for filling in the gaps in the deserts of legal advice, but that is quite different from what is being presented here today.
My hon. Friend will realise that in a private Member's Bill we cannot ask for new money, so that avenue was not open to me. The two cases I cited would not have been brought without the northern complainants aid fund, which highlights why we need help and advice in a statutory framework for the whole country.
An extension of legal aid in Scotland has put money into lawyers' pockets, but my Bill is a not for profit measure that will involve lay people and not simply lawyers, who would be involved only in certain circumstances at the very end of the process. That is the difference between what I am proposing and what happened due to the extension of legal aid in Scotland.
I am not entirely sure about that, but if that is so my approach is better than the Scottish approach because it will give direct help, advice and representation to people who need it and who have a viable case.
I have been listening carefully to the case that the hon. Gentleman is putting to the House. We need to consider what he is saying in context and it seems to me that he is being a little careless about the question of costs in his Bill. Costs will be involved in setting up the board and whoever the board appoints. Even worse, in the wider context of paragraph (v), subsection (f), clause 13, the costs of those attending the tribunal would also be met, irrespective of whether they had a proper case. The case might be vexatious or the complainants might be liars but their costs would still be paid. Can the hon. Gentleman give the House some idea of what he expects his Bill to cost the Exchequer?
No. I cannot give the hon. Gentleman that information, but codes of practice would be drawn up by the board so that the type of case he cites would not go through. The system would be accountable and, to be part of it, bodies would have to prove that they were efficient and effective in mounting cases.
Age discrimination is on the increase. By 2006, there will be more people aged between 55 and 64 than 16 to 24, and 45 to 59-year-olds will form the largest group in the labour force. However, discrimination affects both older and younger workers. The young are least likely to have access to representation, especially when they are entering the job market for the first time.
Other forms of discrimination include homophobia and religion. All result in lost output to the economy, which is impossible to quantify and an unacceptable blight on social cohesion and human rights. Indeed, fighting discrimination is so difficult, as we have seen, that almost half all discrimination cases are withdrawn compared with a quarter of unfair dismissal claims. Behind those figures lies a picture of misery and lost potential. If even a small percentage of those cases were withdrawn due to lack of representation, it is tantamount to a national disgrace.
I am grateful to the hon. Gentleman for giving way twice so generously and I shall not trouble him again.
My previous intervention was a little careless in that I said that the costs were Exchequer costs. They are not. They are directly attributable to the Lord Chancellor because a private Member's Bill cannot include increased costs to the Exchequer; ipso facto, all the costs that the hon. Gentleman cannot quantify will come from the budget of the Lord Chancellor and the Department for Constitutional Affairs. What does he think should be cut from that budget at present to pay the costs of his Bill?
The Bill is about principles; it is about access to justice and whether we believe in that. If we followed the hon. Gentleman's argument on costs, we would not be providing access to justice for many groups of people. The principle of the Bill is not finance; it is about providing access to justice for some of the most vulnerable people in our society.
My hon. Friend read a brief but appropriate list of groups of people who suffer discrimination. A fortnight ago, I visited a group in my constituency, the Yellow project, which deals with young, single, homeless males who are liable to suffer particular forms of discrimination in the work force. Although my hon. Friend's Bill has entirely appropriate aims and principles behind it, I am not clear how it would reach such people in a way that current provisions do not.
The group in my hon. Friend's constituency may have support, but support for various groups of people is patchy across the country; for example, it does not exist in my constituency, in Bradford. The whole point of the Bill is to set up a national framework of help and support that is consistent throughout the country.
I am most grateful to the hon. Gentleman for giving way a second time, but his answer to my hon. Friend Mr. Clifton-Brown was totally unsatisfactory. There is a given pot in the Lord Chancellor's Department to deliver justice, yet, for example, in paragraph 10 of schedule 1 we see that the board will pay the chairman and any other appropriate staff. What analysis has the hon. Gentleman made of the real cost of that and what impact will it have on other aspects of justice? How do we know that other people who want legal services will not be prejudiced by that quango, the financing of which seem to be open-ended?
I think I have been more than generous in accepting interventions and I would like to make some progress.
I want to turn to some of the specific principles that underpin the Bill. Recent legislation and policy guidance have demonstrated a trend toward discouraging litigation in favour of dispute resolution. We have seen that in the revised employment tribunals regulations and the Employment Act 2002. I am in favour of that, provided that it genuinely works to resolve discrimination rather than simply pushing complainants into withdrawing genuine claims. It must not be an excuse to conceal or bury discrimination. My Bill will ensure that that does not happen.
The Bill's provisions will provide the best possible support for complainants; they are not about lining the pockets of the legal profession. The Bill explicitly does not provide for lawyers and barristers as the first recourse, but for specialist help that is properly accredited and monitored. Many claims are settled without a tribunal—as many as 46 per cent. for unfair dismissal, 49 per cent. for disability discrimination and almost 40 per cent. of equal pay claims.
An employment lawyer, quoted in The Guardian in July 2004, estimated that 85 per cent. of employment claims are settled out of court—a strong indication that the majority of complainants would prefer a conciliated settlement. Few actually want their day in court; they want to exercise their human right to access to justice and to redress discrimination and unfair employment practices. There will of course be a few cases where lawyers are necessary, but the process will ensure that it is only when they are really justified.
Since the 1990s, we have seen an emphasis on fostering development in the voluntary and not-for-profit sector. While this confers a valuable and desirable degree of independence, it is vital to ensure that the service delivered is to a high standard. The Bill aims to do just that.
We are all well aware of the sterling work carried out by many voluntary bodies, such as Citizens Advice and law centres, which undertake a range of advice services and are frequently constrained by lack of adequate funding. A quote from Citizens Advice illustrates this. Citizens advice bureaux place great emphasis on mediation, negotiation and settlements, use of tribunals, ombudsman schemes and other alternative dispute resolution procedures where these are effective. But, as I mentioned, they are constrained, not only by the total amount of funding they have overall, but restrictions on how it can be used, and
"there are no incentives or rewards for publicly funded practitioners to pursue these avenues for clients. For example Citizen's Advice Bureaux are currently limited in the amount of contract time they can claim for dealing with correspondence on behalf of clients, which may be essential to negotiate a resolution, and can prevent the client being taken to court in debt cases".
Citizens Advice goes on to suggest:
"Incentives to negotiate effectively in complex cases should be structured into the contractual regime and into the funding code".
I also draw attention to an example from my constituency. The northern complainants aid fund was founded in 1991 by a group of former complainants in Bradford. Between 1992 and 2003, the NCAF represented complainants in 110 successful discrimination cases at employment tribunals and negotiated settlements in hundreds more cases. It also provided training for union staff and others working on discrimination and in 1993 was described by the CRE as a best practice model. The landmark Birmingham pregnancy discrimination case that I mentioned earlier, which stimulated the Equal Opportunities Commission research, was brought by the NCAF. Yet, because of cuts in funding for complainant aid, in 2003 it was forced to suspend direct assistance.
That picture is repeated again and again. Bradford law centre has had its local authority grant cut and has had to reduce considerably the time that it can allocate to employment cases.
The hon. Gentleman is regularly referring to the absence of funding for the CRE, citizens advice bureaux and like. But those bodies are not there to act as adjudicators and lawyers themselves; part of their function is to refer to lawyers who do have access to the necessary funds, through legal aid. He is therefore proposing a duplication of something that already exists.
Yes, but I did not refer to a lack of funding of the CRE. Part of my Bill addresses the complaint that the equal opportunities bodies are not doing what they should be doing—giving support to people with discrimination claims. The problem with going to lawyers is that there is no funding available to unfair dismissal or discrimination complainants. No legal aid is available to them.
I am afraid that the hon. Gentleman is wrong. No financial assistance is available to complainants in such cases.
The picture is repeated again and again. I have no doubt that the pattern of cuts that I mentioned can be found right across the country and in very many constituencies represented here.
I am grateful to my hon. Friend for giving way to me yet again. The Legal Services Commission website—community legal services, the legal aid scheme—says clearly that it funds cases relating to employment and provides help ranging from information leaflets to other services, to specialist advice and taking cases to court where necessary. I should be grateful for my hon. Friend's comments on that.
I am grateful for that intervention. Whatever is stated on that website, the reality is that for the majority of people no assistance is available, and I am on my feet today to try and redress that. [Interruption.] With the leave of the House, I shall continue.
Some hon. Members may say that this work should be covered by the existing equality bodies. That is clearly not happening. Between 2002 and 2005 there was a systematic reduction in the already small amount of money available for representation. In June 2004, the Government released figures that revealed that for 2004–05 the CRE had earmarked 2 per cent. of its annual budget for discrimination cases, the EOC 3.1 per cent. and the Disability Rights Commission 5.5 per cent. That does not amount to significant support. The Equal Opportunities Commission, for example, tends to take up cases of "strategic importance", which to some extent applies to the CRE and the DRC. That is, it will support a claimant in bringing a case that will assist in setting a precedent for other cases. That is of little value unless those that follow have the resources to pursue their own complaint.
Hon. Members may also argue, as they have, that such support is a job for trade unions. I do not dispute that. My concern, however, is that union membership is not as high as many of us would like, and some groups of workers are especially vulnerable. Department of Trade and Industry figures for 2004 show that fewer than a third—28.8 per cent.—of workers are union members, and in the private sector fewer than a fifth—17.2 per cent. Union membership is even lower for the 16 to 24 age group, at 8.9 per cent.
Does my hon. Friend accept that there must be a balance and we have to be careful that while giving the appropriate rights we do not legislate unions out of existence? In countries such as France, where perhaps the terms of such legislation would go much further, trade union membership is very low indeed, apart from in a few sections of the public sector.
The reality is how I portrayed it, and I am trying to achieve a balance between those people who do get support because they are in unions—I would encourage more people to join a trade union—and the vast majority of people who are not in trade unions, who cannot access the support that they need in such cases. Young people are especially vulnerable. They are unlikely to be unionised and may face discrimination at the point of finding a job. In July 2005, Radio Five Live carried out a survey that exposed discrimination between job applicants. It sent dummy CVs to 60 companies. It found that 23 per cent. of those with "white" sounding names were offered interviews, while only 9 per cent. of applicants with Muslim names and 13 per cent. of those with African names were offered interviews. Nine years before, a young Bradford jobseeker, Tahir Hussain, had tested that himself with the same result, which resulted in 11 successful tribunal cases. In the 1980s, the charity Scope conducted a survey on similar principles in relation to disability—and yes, the results were the same.
In relation to the young man from Bradford who tested the system and as a result brought 11 tribunal cases, does that not back up the fact that representation is available or that people can bring successful cases without the need for the Bill?
That was possible when support was available for that young man. That support is no longer available in Bradford or in many other parts of the country. Either we work on the desert and oases principle that was propounded before—that we have a service in many areas of the country and we are not bothered if there is no service in others—or we have a national system that gives all complainants of discrimination in employment equal access to justice. There is no such system at the moment.
Some might suggest that no win, no fee arrangements are available to complainants. Such arrangements have received a bad press of late. There is no doubt that such agreements do not favour early conciliated resolution. Indeed, they are specifically geared to litigation. As well as often leading claimants into debt, they lead to gridlock in the courts. The complex financial and legal processes involved are often misunderstood by complainants. There is widespread mis-selling of legal insurance products. Complainants are subjected to high-pressure sales tactics by unqualified salesmen. Inappropriate marketing and sales practices are used—for example, with salesmen approaching accident victims in hospital.
Few complainants seem to understand the risks and liabilities that they are exposing themselves to when they are misled into thinking the system will be genuinely conducted on a no win, no fee arrangement. They often find that there are hidden and unpredictable costs. Loan-financed insurance premiums, in addition to other legal costs, can often wipe out claimants' compensation. In some cases, complainants even owe money at the end of the process. So we can see that discrimination in employment is widespread and begins at the point of application. The existing equality bodies allocate a pitifully small portion of their budgets to casework support, and the number of cases is accordingly small.
Would the hon. Gentleman like to comment on the interaction of clauses 4 and 5? Clause 4 seems to suggest that the board's main work—
It is clause 4, but not that one. Clause 4 suggests that the board shall accredit bodies to tender for the work of providing assistance. Clause 5(5) suggests that, if the board is not satisfied that it is appropriate to select accredited bodies, it can select a non-accredited body. What is the point of all the accreditation work if the board can choose whoever it wants?
The board cannot quite choose whoever it wants. The accredited body in a certain area may have failed some of the monitoring tests, so to provide a service, the board would need to invite other tenders.
In summary, the Bill provides for an independent, adequately funded not-for-profit service to give specialist support on employment discrimination cases. That can be achieved without necessarily allocating new money, but rather by transferring funds from existing sources, which would be timely given that those bodies are being restructured. Integral to the Bill are provisions to ensure that that support is properly monitored, accredited and regulated.
Citizens Advice has commented:
"In a mixed economy of services, access to justice is best promoted through a diversity of pathways to legal redress. Tribunals are often described as a cheaper more accessible and user-friendly forum of adjudication; the various tribunals handle over a million cases a year. However, there is no public funding available for legal representation at tribunals and users often find themselves dealing with complex legal issues and procedures unassisted. Across all the advice areas that come within the scope of the Community Legal Service, CABs frequently report cases, which demonstrate a clear need for public funding to be made available for representation at tribunals, and additional benefits to helping clients resolve issues through tribunal processes rather than allowing legal problems to escalate further. Given the principles imposed by the Human Rights Act, it is increasingly difficult to justify the exclusion of tribunal representation from the scope of the funding code."
Citizens Advice has also reported more generally on access to justice. In its report on community legal services, it found that 27 per cent. of citizens advice bureaux had difficulty in finding solicitors to deal with employment cases. Employment tribunals are intended to ensure that both parties are on a level footing. It is widely acknowledged that the law on this issue has become increasingly complex and frequently places the complainant at a disadvantage where employers have access to lawyers and barristers.
I quote Citizens Advice:
"Employment law also grows ever more complex, with the addition of new employment rights, and there is also a growing trend, first highlighted in Citizens Advice's 1995 report "Barriers to Justice", for employers at industrial tribunals to be represented by barristers or solicitors, again putting unrepresented applicants at a severe disadvantage."
I should like to make progress.
Research shows that representation can make a real difference to the outcomes of tribunals. It has long been the view of the CABs that their clients would benefit from funded representation at tribunals, that in many cases achieving a positive resolution at tribunal stage saves further expense at a later stage and that tribunal representation should be treated in the funding code on a similar basis to legal representation.
Equalities work is set to become yet more complex. It is an expanding area, with new strands being incorporated—for example, age discrimination and transgender issues. Legislative provisions for age discrimination are due in 2006. Legislation passed in 2003 addressed religion and sexual orientation, and transgender discrimination regulations were introduced in 1999.
I am conscious that some may fear that Britain is developing a compensation culture, but that is outside the scope of my Bill, as it largely relates to injury claims, rather than discrimination claims. However, a closer examination of news reports finds that that assertion originated with the CBI in August 2001. The Better Regulation Task Force has exploded that myth, which is largely a matter of perception rather than substance. The cost associated with legal cases in this country as a proportion of gross domestic product is among the lowest in the world at 0.6 per cent.
As I said earlier, most complainants do not want their day in court but the means to exercise their statutory rights. Therefore, there are three main strands to my Bill. While providing long overdue support to victims of discrimination in employment, it will promote conciliation and arbitration. That will reduce, not increase, litigation. It will be not-for-profit, while ensuring the standard of services, and it will create parity for both parties.
As Lord Irvine said as far back as 1996:
"There is no greater unfairness than the legally unrepresented applicant against the legally represented employer in industrial tribunal cases".
He also said:
"Article 6 of the European Convention on Human Rights establishes the principle of 'equality of arms' in the context of criminal law, but arguably the principle extends to all proceedings involving the determination of civil rights and obligations. As a result of lobbying by human rights lawyers, Immigration Adjudicator and Immigration Appeal Tribunals have now been brought into the scope of Community Legal Service funding."
Writing in 1998, in the foreword to the white paper, "Modernising Justice", he also said:
"People need to have ways to uphold their rights and defend their interests in their dealings with others including employers, retailers, service providers and the state. It is not enough for people to have rights; they must be confident they can enforce those rights if need be. This was the purpose behind the Human Rights Act 1998, which enables citizens to enforce their fundamental rights through the British Courts."
Now is the time to ensure that victims of employment discrimination have the same equality of arms, so that they, too, have the necessary resources available to them to exercise and realise their human rights. We are talking about the most vulnerable people in the workplace: young people, ethnic minorities and people who have been discriminated against because of religion or gender. At election time or during the meetings that we attend, we can wear our hearts on our sleeves and say how much we oppose discrimination and how much we support equal opportunities and a multicultural society, but discrimination is still prevalent. Unless the vulnerable groups facing discrimination have access to justice, all our protestations about equality sound rather hollow. It is time to change that situation. Discrimination has no place in our society; it has no place in a civilised society.
I congratulate Mr. Singh on his success in the ballot and on presenting a Bill that highlights an important issue: public funding for employment discrimination cases. However, although he has raised a important issue, I do not believe that his Bill is the correct way to rectify the present situation. The Bill would create yet another quango: the tribunal representation and assistance board. We have far too many quangos already, and we should be getting rid of some of them, not creating yet another one. He raised the important issue of legal aid not being available for representation in employment tribunal cases in England and Wales, although it is available under certain circumstances in Scotland, but there is no need to create yet another quango to address the matter.
I fully support what the hon. Gentleman says about quangos in general, so will he support the moves by the Welsh Assembly Government to try to get rid of some of the superfluity of quangos? At the moment, those moves are being opposed by his colleagues in the Welsh Assembly Government.
I believe in devolution. It is for Wales to sort out the matter for itself; I do not propose to interfere.
The functions that the Bill proposes to give to the new board could just as well be carried out by existing quangos—by the Legal Services Commission or the Scottish Legal Aid Board. In most cases, legal aid is not appropriate for employment tribunals. There is, however, one exception, which I will come to later. Employment tribunal hearings were not intended to be as formal as a court of law. They were designed so that the parties could represent themselves or be represented by lay representatives. Indeed, two of the three members of the tribunal are usually lay members.
Appeals on a point of law can be made to employment appeal tribunals where parties are entitled to apply for legal aid, and parties may also be entitled to legal aid to help prepare them for employment tribunals. As employment tribunals are meant to be accessible to people who are representing themselves, I support the general principle that public funding should not be available for legal aid in most cases.
There is, however, one exception. That is on those rare occasions when the tribunal hearing will involve complex legal issues so that detailed and effective presentation are required for a case to have any hope of success. In such complex cases, the lack of legal representation could well amount to non-compliance with article 6.1 of the European convention on human rights, which is the right to a fair trial.
Is that not the point? We should be concentrating on the very complex cases and not opening everything up. We should try to ensure that people do not get to that point and, through the work of trade union representatives and discussions with employers, we should try to resolve the issues before they reach the tribunal stage. That should not be the first port of call.
I entirely agree; that should be the approach. However, a very small number of complex cases will arise, and that was recognised in Scotland, as the hon. Gentleman said in an earlier intervention.
In Scotland, legal aid is available only for a very small number of complex cases. The Scottish Executive introduced the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003. They give the Scottish Legal Aid Board powers to award legal aid for proceedings before an employment tribunal in cases where the board is satisfied that, first, the case is arguable; that, secondly, it is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and, thirdly, that the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person. In reaching its decision, the board has also to take into account the fact that the applicant may be unable to understand the proceedings or to state his own case because of age, inadequate knowledge of English, mental illness or other mental or physical disability.
Does the hon. Gentleman accept my contention that although in this important debate a very powerful case has been made on the extent of discrimination that remains in the work force, we still have not got to the nub of the issue? How many are disfranchised from being able to bring such cases? He talks about exceptional cases, but I am still not convinced. Given the mass of discrimination that there may be, how many cases are being stopped? What is his perception of the scale of the problem?
My perception is that the legal situation becomes complex only in a small number of cases. That was recognised in Scotland.
Whereas employment tribunals are a reserved matter under the Scotland Act 1998, legal aid rules have been devolved to the Scottish Parliament. One of the advantages of devolution is that the various Administrations can learn from each other. This is an example of where the Government here could learn from the Scottish Executive and adopt similar rules to those introduced by the Scottish Executive to make legal aid available for a small number of complex cases.
May I suggest to the hon. Gentleman that we already go further than the Scottish Executive? With the exceptional funding arrangements that we have here, cases that have a significant wider public interest could also receive legal aid. That is not the case in Scotland.
The arguments for the establishment of the tribunal representation and assistance board, as proposed in the Bill, appear in many cases and on an initial consideration to have some merit in ensuring that applicants in discrimination cases brought before the employment tribunals and appeal tribunals have access to legal advice and representation. Some of the arguments that we have heard and that we will hear in the debate are valuable.
The Bill would provide for legal advice and representation whereas the Legal Services Commission generally only provides for advice and not representation. Indeed, the LSC provides its assistance only after testing for eligibility, and representation can be made only in exceptional circumstances. Such circumstances applied to only six cases between 2000 and today. The fact that legal aid is, as we have heard, available only for employment tribunal appeals and not at the tribunal appears to draw one towards the arguments for the Bill. Experienced representatives could arguably make it easier to present the applicant's case and the Bill's point about the ability to charge for representation is, if taken at face value, a useful proposition. It argues that it could create a revenue stream.
Labour Members also support the argument that this Government have introduced more rights since 1997, and we are very proud of that. We applaud the House for taking that opportunity. As a consequence of that, there must be a necessary growth in the number of tribunals.
I have outlined the face-value merits of the Bill, but we must also consider the arguments against it in evaluating the proposals. As we have heard, many cases do not require legal representation and, in those instances, the advice offered will duplicate the services already provided by the Legal Services Commission. It is that body's responsibility to ensure that not just legal advice but "quality assured legal advice" is delivered. We must also be aware of the fact that the equality commissions can fund legal representation, but I reiterate that, in most cases, legal help and advice is sufficient. Legal representation is not a necessary service. We must also consider the fact that such duplication would create an extra layer of bureaucracy and lead to additional expenditure.
It is argued that the proposed tribunal representation and assistance board could be a revenue earner, but what evidence do we have that clients who were liable for costs incurred would use the service instead of alternative legal specialists? What would be the attraction of receiving a bill from the board instead of one from somewhere else?
Does the hon. Gentleman agree that the fact that people must at the moment go through many hoops to get to an employment tribunal tends to suggest that such people feel strongly that they have a good case? However, only 29 per cent. of discrimination cases that reach a tribunal succeed, only 28 per cent. of such sex discrimination cases succeed, and only 15 per cent. of such race discrimination cases succeed. How does he respond to the argument that by setting up this new quango we would be encouraging a plethora of new tribunal cases that might be much weaker than those that are brought forward at the moment?
Mr. Hollobone says that there are loads of hoops to go through, but there is nothing to stop anyone from going to a tribunal with any sort of case under any circumstances, although that does not necessarily mean that they will get anywhere with such cases. In my previous job, I was involved in a lot of tribunals in which the case reached the first stage before being thrown out, but there was nothing to stop someone from taking a case to that stage.
No eligibility criteria are set out in the Bill, which would mean that claimants who could clearly fund their own cases would often be supported, which would not be a good use of public funds. On examination, I am not convinced by the promises of additional revenue delivery that are made of the Bill.
There are already well-established bodies and mechanisms that offer people valuable and indispensable advice, such as trade unions and citizens advice bureaux. Indeed, friends and colleagues can give people advice. Additionally, as a plank of their delivery in this area, the Government have attempted to ensure that more disputes are resolved before they need to reach a tribunal. However, the Bill might increase the number of legal representations made and reduce the number of outcomes reached through negotiation.
The Bill would give the proposed new board the power to set its budget and force the Lord Chancellor to meet that. It could be argued that unmeritorious claims would be funded as well as justifiable ones, so we must ask whether that would be a good use of the public purse.
I support both our aim of improving advice and assistance given at an early stage to reduce the number of cases that progress to the courts, and alternative ways to settle disputes in the workplace. The English and Welsh civil and social justice survey showed an increase in the proportion of cases that were resolved in such a way at a time when the actual number of cases for which advice was received was falling. We certainly seem to be getting the advice and support argument right and more focused.
The Government are launching a new tribunals service in 2006 and employment tribunals and the Employment Appeal Tribunal will come under the agency at that time. That will increase our opportunity of having an even-handed and responsive service that delivers to people reliability, consistency and dependability, yet is also properly resourced, accountable and transparent.
A problem with the Bill is the fact that it limits itself to cases of discrimination. Are not cases of unfair dismissal, unauthorised deduction, breach of contract and redundancy pay equally meritorious, given that they and other associated non-discriminatory cases accounted for nearly 82 per cent. of all employment tribunal claims in 2004–05?
We need to go further on enforcing settlements made at tribunals by removing the legal onus on complainants to pursue their awards, if they are not forthcoming in the agreed time, and by introducing a system that empowers the tribunal service or another body to instigate action automatically on behalf of a complainant at the appropriate time. However, I realise that that debate is not for today—hopefully, it is for another time in the Chamber.
Given that I represent a Scottish constituency, I should comment about the comparison that has been drawn today with the situation in Scotland. Although the Scottish Parliament has increased funding and legal aid, which addresses some of the problems raised today, there are few similarities between the functionality of the system and the Bill's proposals. I reiterate a point that I attempted to make during an intervention. Although my hon. Friend Mr. Singh is arguing the need for justice, he is failing to argue appropriately for efficient and transparent spending from the public purse. Indeed, I believe that he showed in some depth today the success, rather than failure, of the present system and methods. I remain to be convinced that the Bill's proposals would deliver value for money and the transparency that is demanded today, or help those most in need in the most appropriate manner.
I am somewhat loth to make a speech opposing the Bill because Labour Members seem to be doing a perfectly good job of that without my having to intervene on their private grief.
Mr. Singh is my neighbouring MP. He is a good man and people in Bradford respect him enormously, but his Bill is completely misguided, both in principle and practice. He believes that current arrangements breach the Human Rights Act 1998, but some Conservative Members do not care too much about that because we were not big fans of the Act in the first place.
The Bill would be likely only to add to this country's compensation culture. People are sick and tired of frivolous claims being taken to court just to line the pockets of lawyers. The hon. Gentleman said that the Bill would result in the exact opposite of a feeding frenzy for employment lawyers, but I do not understand how it could lead to anything but that.
Will the hon. Gentleman give some evidence that a compensation culture exists in this country? The number of industrial tribunals is reducing, yet the number of personal injury cases is going up. Does he think that someone who is attacked and suffers, for example, a cracked rib should be able to bring a case against their assailant?
I certainly agree with the hon. Gentleman, but that person should take the case to a court of law. People should not only be able to do that, but be pressed to do it so that the truth can come out—
Thank you for keeping me on track, Madam Deputy Speaker.
Despite what the hon. Gentleman said, we do have a compensation culture in this country: time after time, people take the most frivolous claims to tribunals and courts. I am afraid that the Bill will only add to the number of frivolous claims being taken to tribunals.
I am sorry, but the hon. Gentleman does not understand employment tribunals. A frivolous or vexatious case will not get to the tribunal, because the chairman will strike it out before it gets through the door.
As my hon. Friends have explained, many tribunal cases are shown to be quite frivolous, and are turned down. A minority of cases are accepted, so I do not accept the idea that no frivolous claims go to tribunals.
I am sorry, but that is the case. Is the hon. Gentleman questioning the ability of tribunal chairmen and panels? In my experience, frivolous and vexatious cases are struck out. Moreover, under the Employment Act 2002 there is an onus on both employers and applicants to ensure that they have gone down all the avenues to try to resolve disputes before they get to a tribunal, and that has reduced the number of tribunals over the past two years.
All that this Bill would do is to lead to even more frivolous claims. People would be able to take a claim to a tribunal knowing that it would cost them nothing, and that they had nothing to lose. It does not matter what they say, because someone else—taxpayers, such as me and the people in my constituency—picks up the tab for the most ridiculous, frivolous and stupid complaints. Why should decent, honest, law-abiding, tax-paying people in this country pick up the tab for people who make frivolous claims?
The hon. Gentleman may not be able to give the number, but can he at least give us a few examples? He is obviously sure of his ground, because he is saying that he knows of loads of cases from his area, so can he name just one?
My hon. Friends have made the point perfectly well about the number of cases that end up with a successful prosecution of the company concerned. Very few do, so the facts are perfectly clear: most of these cases are not grounded in any basis of fact, and there is no case to answer. The Bill will simply lead to even more of these frivolous cases going to tribunals, because people will know that they will not have to pay any money themselves, and the good old taxpayer will have to dig his hand into his pocket one more time to pay for another politically correct pet project from new Labour.
I fear that I must intervene, because the hon. Gentleman's words call into question the whole structure of our present system, and the ability of employment tribunal chairmen to make relevant, precise value judgments on cases. What we are hearing from Conservative Members today is quite shocking, and questions the structure of our whole employment tribunal system—
I stand corrected; they are questioning our legal system too. The employment tribunal system is extremely valuable, and what Conservatives have said is stunning. I would like the hon. Gentleman to withdraw and consider his remarks, which do his argument no good at all.
The Bill is about whether we give people free legal representation at employment tribunals no matter how good or bad their case, and whether that would be a good thing or a bad thing. It would lead to more frivolous claims being taken, or attempted to be taken, to employment tribunals by people who have no good reason or case, because they know that the taxpayer will pick up the tab and they will not have to.
I might go and get a hammer and chisel in a minute, to see whether I can get my point across to the hon. Gentleman. If someone applies to take what he describes as a frivolous case to an industrial tribunal, it will not even get there, because it will be struck out beforehand. I have grave reservations about the Bill, but the idea that it would lead to open-ended access for frivolous and vexatious cases is wrong. Clearly, the hon. Gentleman does not understand how the tribunal system works.
The hon. Gentleman would be very naive to think that the Bill would not lead to people trying their luck if they thought that they had a case, even if there was no good case to answer.
This is not just a question of what happens at the tribunal, but of what happens before the case gets there, and before it is thrown out. What happens to a business when someone puts in a discrimination claim? Does the business not have to spend time looking into the case?
Has the hon. Gentleman had the opportunity to consider the range of measures that have been introduced to try to tease out the details before a case gets to a tribunal—further and better particulars, questions and requests for further details, the exchange of witness statements seven days before the hearing and so on—so that employers can decide whether they wish to settle the case? My experience is that if someone has a strong case, an employer who is properly advised—by lawyers, usually—will offer a settlement that an employee will want to consider seriously.
The hon. Lady does not feel that the Bill will cause more time to be spent in tribunals—but what it will do, which she seems to find acceptable, is waste as much time as possible for businesses in going backwards and forwards to see whether the person has a case to answer.
Does my hon. Friend agree that well over half the cases are either withdrawn or dismissed? Against that background, is not his concern the possibility of an increased surge in cases, putting even further burdens on business?
That is the very point that I was trying to make, and I thank my hon. Friend for clarifying the matter. Labour Members clearly do not understand, perhaps because most of them have no experience of running a business, and have no idea of the time and effort that businesses have to waste dealing with ridiculous cases.
The Advisory, Conciliation and Arbitration Service figures for 2003–04 show that about 72 per cent. of cases are either settled or withdrawn beforehand, and only 24 per cent. go to a tribunal. May I press the hon. Gentleman on one point? Does he suggest that his constituents in Shipley should not have access to an industrial tribunal? Is he against those tribunals? I am sure that his constituents who value and use them will be interested to hear that.
What I am against is people taking frivolous cases to tribunals, and making frivolous complaints against businesses, so that they have to spend time, effort and money investigating cases and corresponding about them when all they want to do is get on with running the business, looking after their customers and looking after their other employees, to ensure that they still have jobs.
What sort of case would meet the hon. Gentleman's criteria? He obviously does not accept the current criteria, and wants to go further, so what cases would he allow to be taken to a tribunal?
What I would not allow to be taken are the cases to which the hon. Gentleman has referred—the ones that get thrown out very quickly. [Hon. Members: "Give some examples!"] There are dozens of examples.
I wholly admire my hon. Friend for sticking to his guns against Labour Members' comments. After all, this is a debate—but perhaps it would help him to look at the annual report and accounts of the Employment Tribunals Service for 1999–2000 to 2004–05, which show that, in total contradiction of what Mr. Jones says, there are already many weak claims for sex, race and disability discrimination. The success rates are only 28 per cent., 15 per cent. and 29 per cent. That makes my hon. Friend's case.
I thank my hon. Friend for that. Labour Members do not want to face the facts of what goes on under their Government and want to impose even more costs on businesses, despite their claims for better regulation and deregulation. They think it is funny that many small businesses have to face unnecessary, complicated cases that are a waste of time and a burden. The politically correct people in their party find that amusing.
No, I do not. I have run a successful small business in Scotland since 1986. The hon. Gentleman preaches about the legislation introduced by this Government since 1997. As a small business man, the rights and values for which the Government stand, and which they have incorporated into legislation, are a useful tool in my workplace to protect my employees. I do not find them a drawback. It is a shame that he does.
I assure the hon. Gentleman that many businesses in my constituency are appalled by the red tape and regulation that they face. The Bill would only increase costs and the time that they waste in dealing with unnecessary things when they just want to get on with looking after their customers, keeping people in employment and doing something worth while.
The hon. Gentleman is demonstrably out of his depth. I offer him some assistance. Although he has drunk deep of the well of cliché, will he withdraw the statement that he made twice about discrimination cases being simply to do with political correctness? He must realise what a serious and damaging statement that is and how it is the total opposite of the official policy of the Conservative party. Will he admit that there are such things as entirely legitimate cases of discrimination that should be supported, or is every one of them an example of what he refers to wittily as political correctness?
The hon. Gentleman has not been here for much of the debate and has not heard what has been said. I am not opposed to all claims. What I oppose are frivolous claims. The Bill can only—I am sure Labour Members would have to admit this—increase the number of people who decide to have a pot-luck claim for compensation when they have no real basis for that. Every right-minded person would acknowledge that it could only have that one effect and would do nothing to further genuine claims of discrimination, which, as Labour Members have made clear, is covered by other legislation. There are plenty of avenues for people to go down if they want to pursue a claim. The Bill will be successful only if it leads to more people pursuing more frivolous claims. That is its only purpose.
The old adage is, "When you're in a hole, stop digging." My hon. Friend Mr. Singh cited the case of someone who was dismissed because she was pregnant. Does the hon. Gentleman agree that such a case needs to go to an industrial tribunal and should be supported by a decent and fair-minded society? Will he give an example of what he considers a frivolous case?
There is plenty of opportunity for people who have experienced serious discrimination to take their case to a tribunal, whether it be through a legal company or a trade union. If they have a serious claim, there is no barrier to their taking it to an industrial tribunal, but the only purpose of the Bill is to encourage people who have no good basis for a claim to make a case. Other people would be more than happy to take up their case if it was a good one. The Bill would encourage them to have a go.
Does my hon. Friend agree that it is perhaps the compensation culture that is the problem? What we have are a Government who, by legislation and the establishment of quangos, are encouraging something that seriously undermines our society in a number of different ways. By encouraging people to think that blame can be attached to every circumstance and that compensation is available in every circumstance, they cause many of the difficulties that the Bill would exacerbate.
My right hon. Friend is right and emphasises the point that I have made from the outset.
Labour Members want me to give examples of frivolous claims. A prime example is of people from, for example, an ethnic minority who do not get a job because their qualifications do not match the job for which they applied. They then take a claim against a business saying that they were discriminated against because of their race, religion or whatever. The reason they were turned down was likely to be because they were not qualified for the job, yet they still make a claim. The Bill would allow them, without incurring costs, to make a claim for racial discrimination and hope that it wins, when there is no case to answer.
I am well aware of businesses that have turned down people with disabilities. They were not rejected because of their disability—the businesses that I have in mind have a good track record in recruiting people with disabilities. However, those people said, "Well, I'm going to take a claim to a tribunal." The Bill would allow them to have free legal representation even though their disability had nothing to do with why they did not get the job.
Where the hon. Gentleman has evidence of what he describes as frivolous cases, I urge him to put it to the Government so that they can be properly investigated. It is easy to speak in generalities. I also urge him to consider that when he is up against the ropes to put his head down in defence and to stop throwing punches.
I thank the hon. Gentleman for that friendly advice. I assure him that, from my past employment, I know of cases—[Interruption.] If Labour Members do not want to listen to the examples that they have asked for—
The company for which I worked had an excellent track record, as acknowledged by the Labour party, of helping people with disabilities into employment and of helping its customers, yet it still faced complaints from people who said that they were not given a job because of their disability, when nothing could have been further from the truth. That company was a large multinational and, in many respects, could deal with those complaints. My concern is for the many thousands of small businesses that have neither the personnel nor the time to deal with people who try their luck, hoping that they will get a few quid out of someone. Those cases are not acceptable. The Bill would only encourage such people to take their cases as far as they could possibly go.
I understand that the hon. Gentleman used to work for Asda, which is owned by Walmart. Does not Walmart—a very anti-trade union firm—face a huge number of sex discrimination cases, and even race discrimination cases, throughout the United States? He says that his former employer is a shining example of good practice, but the evidence does not support his case.
The hon. Gentleman clearly has no idea what he is talking about. Asda was my former employer. Can he give an example of it discriminating against anybody with a disability, or on the grounds of race or sex? Asda still faces complaints, despite its excellent track record. Does he accept that companies with excellent track records still face frivolous complaints?
The hon. Gentleman is wrong to say that Asda does not encourage people to take independent advice. It has an excellent track record, yet it still faces frivolous complaints.
My main concern is for small companies, not for Asda.—[Interruption.] Perhaps Labour Members should calm down.
Many small companies in the Bradford, West constituency will have to face cases involving discrimination. They do not have the staff to deal with them. I am disappointed that Labour Members seem not to care about small businesses that face the challenges and waste of time that we are discussing.
Perhaps the hon. Gentleman will just settle down.
Small companies will have to deal with frivolous cases. The cases might not get to an employment tribunal, but do not tell me that time will not be taken up dealing with them and that there will be no slur on those companies. Decent companies should not have to face more frivolous claims.
I do not follow the logic of the hon. Gentleman's argument. Is he saying that all small businesses should be outside employment law? That is what he seems to be saying.
The hon. Gentleman will know that that is not what I said. I said that the Bill will lead to many small businesses facing many more frivolous complaints by people who think that they may as well have a go because they have nothing to lose. They will take the view that, if they lose, the taxpayer will pick up the tab, that that will be all right and no one else will worry. As I have said, many small companies will not be able to afford to deal with such matters. Small businesses should not have to waste their time dealing with frivolous cases when they have far better things to do.
I declare an interest. I am a small business man who employs about 10 people. It is the smaller businesses—one-man or two-men businesses that employ one or two people—that face problems. There is the time factor and the costs that such companies will incur, when they should be concentrating on running their businesses. Does my hon. Friend agree that emphasis must be placed on assisting smaller businesses? That does not mean that they will be outside the law. That would be ridiculous. However, there must be some understanding of how we can assist smaller businesses.
My hon. Friend is right. He makes extremely well the case that I have been making.
Many small businesses cannot afford to have the Bill enacted and placed on the statute book.
Is the hon. Gentleman saying to his constituents that if someone faces discrimination or feels that he does, "Don't come knocking on my door. Don't go to your local Member of Parliament. I do not believe that discrimination exists." If that is his position, I would be grateful if he issued a press release.
The hon. Gentleman knows that I have not said that. I have said that if you have a case that has no good grounding—for example, someone feels aggrieved because they do not have a job or because something has happened that does not relate to their race, sex or a disability, for example—do not think that you can take taxpayers' money to pursue a frivolous case.
I think that the House has heard your message to those who are presumably bringing vexatious and frivolous cases. What message do you have for those people who suffer genuine discrimination? Have you any message of support for them?
I apologise, Madam Deputy Speaker.
I do not want to turn away people who have legitimate claims of discrimination. There are plenty of avenues for those people to pursue their case. I am concerned about people who pursue cases with no real reason for doing so. The Bill will give such people a free hand to take the case as far as they can, knowing that that will be at the taxpayers' expense and that they will have nothing to lose by making a frivolous case.
I say to the hon. Gentleman, following the intervention of Mr. Evans, that I have never been a small business owner, but I have been a fully liable director of a voluntary sector trust that employed many people and I have been through employment tribunals. What stood us in good stead was that we had good grievance and disciplinary procedures, along with good training. Any small organisation, be it a private sector employer or a voluntary body, should have nothing to fear from the Bill. I am sure that the hon. Member for Ribble Valley has good procedures in place for his business. Such employers need have no fear of frivolous or flippant claims if they have done the right thing by their work force.
I disagree. The Bill gives them something to fear. The claim may not ultimately be successful. The point that I have been trying to make is that frivolous complaints will still have to be investigated. Time will still have to be taken. People who own a small shop do not have time to wade through a great deal of legal paperwork.
What about the time, the cost and the heartache for the individual who may be suffering discrimination? The Government are trying to develop a culture that encourages people who feel that they are victims of discrimination to come forward and have the matter dealt with at the appropriate level. That may not mean a tribunal. It could mean arbitration or mediation. The thrust of the hon. Gentleman's message is that we should turn that culture on its head and say, "Don't bring the case unless you are genuinely convinced that you will win."
I say, "Don't bring your case unless you have a good case to be answered."
The Bill will undoubtedly lead to many people making claims that have no good grounding and no real chance of success. The company may not face prosecution or a fine, but the hon. Gentleman must accept that any complaint leads to increased costs and increased time pressures on a company. The Bill encourages—
I shall not give way because we have covered this ground several times. The point is that small businesses will face more costs and more time will be taken up by frivolous claims. I do not accept the principle of the Bill because it will make a bad situation worse.
The Bill will open up the possibility of endless costs to the taxpayer. As my hon. Friend Mr. Clifton-Brown highlighted in trying to probe the hon. Member for Bradford, West, there is no limit to the cost that could be incurred by the taxpayer and the Lord Chancellor's Department. However many cases are brought, however good or however bad, they will have to be funded by the Lord Chancellor's Department.The hon. Gentleman could give no indication of the likely cost to the taxpayer. He could not even say whether we are talking about millions, tens of millions, billions or tens of billions of pounds.
The hon. Gentleman has just told the House that he does not agree with the principle of the Bill. When I started out this morning I had serious reservations about it, but his speech is making me and, I think, some of my colleagues, likely to vote for it. My hon. Friend the Member for Bradford, West said that the principle of the Bill concerns discrimination. Is the hon. Gentleman saying that he thinks that discrimination is acceptable in our society or even that he would welcome that if it were true?
The principle of the Bill that I object to is the fact that anybody, however good or bad their case, will get taxpayers' money to pursue it as far as they can. I do not accept that that is a good principle.
I remind my hon. Friend, although I am sure there is no need, that the Bill is about
"representation of and assistance to complainants".
That is the whole point of the Bill, and I can well see the point with which my hon. Friend has difficulty, as indeed do I, as I hope to explain later, Madam Deputy Speaker. I do not want my hon. Friend to move away too quickly from the subject of costs. He must have noticed in the Bill, as I have—this has already been raised in the debate—something that I have never before in my life seen in a Bill. It says, in clause 3, that
"the Board shall prepare and send to the Lord Chancellor an estimate of its funding needs".
It goes on, incredibly, to say:
"It shall be the duty of the Lord Chancellor to secure that there is paid to the Board out of money provided by Parliament . . . an amount that is equal to or greater than the total funding needs of the Board".
Does not that suggest, and is it not unprecedented in this place, that here we have a quango that is, by statute, allowed to ask for any amount of money, which the taxpayer, through the Lord Chancellor, is then obliged to provide?
My right hon. Friend is absolutely right: the cost of the Bill is unlimited. The whole principle that the hon. Member for Bradford, West is expounding is that anybody can pursue a claim, however trivial, as far as they can. Obviously, the result will be an unlimited cost. I find the idea of an unlimited cost to the taxpayer completely bizarre, unacceptable and unworkable, and that is why the principle of the Bill cannot be right.
Mr. Forth has in five seconds made a far more comprehensive critique of the Bill than we have heard in half an hour from the hon. Gentleman. May I bring him back to the core point? I realise that he once achieved great things as customer services manager for Asda. I am not sure how he served the customers, but his comments have caused me to have doubts. Will he, once and for all, without equivocation, state for the House whether his thesis is that all complainants to tribunals are frivolous and vexatious and that the burden on small business is such that the entire system, which has served us so well under Governments of both complexions, should be swept away? Yes or no?
I suggest to the hon. Gentleman that when in future he asks questions, he listens to the answer. He has now asked the same question twice, and he will get the same answer twice.—[Interruption.] The question that the hon. Gentleman asked earlier was exactly the same as the one he has just asked, and my answer is that I have nothing against people who make a genuine claim of discrimination; my concern about the Bill is that it will lead to more people making frivolous claims because they will be able do so at no cost to themselves. They will know that the taxpayer will pick up the tab, however much it is, because the Bill, as my right hon. Friend Mr. Forth said, requires the taxpayer to pay out however much is demanded.
It is clear that the employment tribunal service annual report and accounts 1999–2000 to 2004–05 were not on the holiday reading list of the hon. Members for Ealing, North (Stephen Pound) and for North Durham (Mr. Jones). The facts help my hon. Friend's case. The total number of discrimination claims has increased from 8,272 in 1999–2000 to 27,907 in 2004–05, and they have increased from 9.9 to 19 per cent. of the total number of claims.
My hon. Friend is absolutely right, and I am very sad that Labour Members do not accept that there is a problem and that the Bill could only make it worse. I am sorry that they do not see the costs that will be incurred and the damage done to small businesses, which are major wealth creators in our economy, not just in Shipley but in their constituencies.
Thank you, Madam Deputy Speaker. I can only say in mitigation that if Labour Members keep asking the same question, I can only keep giving them the same answer, so I hope that you will forgive me.
The cost of the Bill is completely unacceptable. As my hon. Friend the Member for Cotswold revealed by his question, no provision has been made for the possible cost. It will be a waste of money for businesses; it will be a waste of money for taxpayers. This is not about employment tribunals; it is more about employment creation for politically correct people, so that they can sit in judgment and feather their own nests, taking in taxpayers' money to do something that is completely unnecessary. I urge hon. Members to stop this Bill making any further progress. It will make the compensation culture of this country even worse than it is today and add even more to the costs faced by small businesses, which are already being dragged down by the burden of regulation imposed by this new Labour Government.
I have listened with great interest to Philip Davies and his argument about frivolous and vexatious claims. I want to talk about my experience as a lawyer, and I say that with some trepidation because of the comments that have been made about lawyers.
I spent my legal career in community law centres, where we acted for the most disadvantaged members of our community. Where we could, we would help them under the legal aid scheme, but we would also represent people at tribunals. As a lawyer, I took very seriously my responsibility to advise my clients whether their claim had any chance of success. I would make it clear to them if I thought that their claim had no chance of success, because I certainly did not want to get in front of a tribunal and find myself in trouble with the chair, possibly with cost orders made against me and the law centre.
I want to give an example of a case that demonstrates the importance of representation being available in employment tribunals. I had a client with a history of mental health problems. She had managed, with a loving and supportive family, to maintain a job as a cleaner for many years, but she had an episode of her mental health problem reoccurring and ended up having to go into a psychiatric hospital. Her employer wrote to her at the hospital, wishing her all the best in getting better but saying that she was dismissed forthwith. Her husband came to see me to say that that did not seem quite fair. The family did not have English as their first language, but they had a feeling that things were not quite as they should be.
As a lawyer in a law centre, I was lucky to be in a position to take that case forward. The employer denied any form of discrimination, although in the end we issued disability discrimination proceedings, and claimed unfair dismissal, wrongful dismissal and unpaid wages. It was a powerful claim. The employer would not have settled that claim if he did not know that a lawyer was willing to go all the way to a tribunal and represent that person.
I am sure that the House is grateful to the hon. Lady for sharing that direct experience with us, but is she making a case for the Bill, or is she reinforcing the argument that many Conservative Members have advanced, that most of the mechanisms in place already are pretty adequate and we should be careful not to try add to their number unnecessarily? That seems to be the thrust of what she has just said.
There are cases where it is vital that people have access to legal representation, or representation through a trade union. This Government have been sensible in bringing forward alternative dispute resolution as a powerful means of trying to settle claims between employers and employees, but some cases will go to tribunal and it is vital that those most disadvantaged in our society—they are the people whom we are talking about—have the opportunity to have legal representation.
It is nice to hear from an individual who understands the subject more than the previous hon. Member to make a speech did. Is it correct that, if the case that she described had been a frivolous case, it would not even have got through the tribunal's doors?
That is right. My hon. Friend has already talked about the measures and proceedings that are in place. A case can be brought before the tribunal in a preliminary hearing. The tribunal chair has the opportunity to ask for a deposit from a claimant. There are measures in place to deal with frivolous and vexatious cases. CABs, law centres and trade union representatives will be clear with people taking claims to the tribunal that it is stressful and that they can get themselves into hot water if they reach the tribunal with a frivolous claim. There are lots of steps along the way to stop that happening.
The hon. Lady powerfully explains her approach to these matters in her previous profession, but the Employment Tribunals Service's annual report and accounts give the success rate for claims that reach the tribunal: in sex, race or disability discrimination cases, it is 28, 15 and 29 per cent. respectively. That implies that, when giving advice, not all her fellow practitioners are as robust in suggesting to claimants that they have a weak case. She is right. Those giving professional advice should advise clients when their claim is weak, but the evidence seems to be that many are not giving robust advice and too many weak claims are proceeding to tribunal; otherwise, the success rates would be higher.
Any person who has represented someone in a tribunal will know that a case may not always go as well as one thought it would in the tribunal. Witnesses may not always come up to proof, although they have perhaps in a witness statement beforehand. All sorts of issues happen, but my experience and that of employment lawyers whom I have dealt with has been that there is every attempt to try to settle cases without the stress and anxiety of the client having to go through a tribunal case and sit through what can be often quite vigorous cross-examination by an employer's representative. Most employers will have a barrister or solicitor present to represent them at the tribunal. That is where I support the principle of legal representation in tribunals: we have to be aware that at the moment there are cases that go to tribunal where people do not have the opportunity of legal representation.
We have talked a lot about trade unions and the important role they play. I am passionate about ensuring that as many people as possible understand why it is important to be a member of a trade union, to give them that protection if they get into difficulty in their employment.
From my experience in tribunals, many companies employ barristers for cases that do not need it. Does my hon. Friend agree that there is a danger in the argument that she has just advanced, in that one may have to ratchet a case up when, for example, a company brings a lawyer and then a barrister in? That would then have to be paid for by the taxpayer. Nine times out of 10 in the cases I have experienced, no barrister or solicitor is needed.
Some of the most effective representatives whom I have come across in employment tribunals are not lawyers but people who have a lot of experience working in citizens advice bureaux or law centres. Often they will have a more common-sense approach, too.
Again, I agree with the principle of representation in employment tribunals for some cases. I do not believe that we need the extent and range of representation that perhaps this Bill is putting forward. Agreeing in principle but looking at the practicalities of my own experience, I would say a better way forward was to charge the Legal Services Commission with looking again at how best legal advice and representation can be provided where it is needed in tribunals. There is a wider issue about community law centres and the valuable role they can play in educating local communities about the rights they have, taking forward claims of discrimination and other employment matters when necessary, and using all the alternative dispute resolution mechanisms. I found ACAS vital in the claims I took forward.
I do not know whether my hon. Friend has had a chance to see the community legal service website, but it gives a lot of excellent information that is quite readable and helps people, particularly at the initial stages, when they may be worried about whether they have a case or not.
That is right. I am pleased that the Government have introduced a range of measures. We have the commitment to the community legal service. We have funding of some community law centres. We also have investment in citizens advice bureaux. All those measures are positive and we should support them, but there is a need in certain cases for legal representation.
I want to say something about the problems applicants have in employment tribunals if they have to represent themselves. When I started practising employment law, the procedures in the employment tribunal—it was then called the industrial tribunal—were far simpler. It was almost as if one could turn up on the day and present one's case. Now a range of procedures have to be adopted. We have to disclose evidence before a tribunal hearing, provide witness statements and further and better particulars when requested by the other side. Applicants find those things difficult to do. It is getting technical and legalistic. That is why it is vital to have input from a law centre or a trade union rep. They can deal with those things.
I know from being involved in tribunals that, when the person turns up and sees that there is a barrister on the other side, that can be frightening. They link it to a court situation and feel vulnerable.
My hon. Friend is correct. Tribunal chairs are often very good about assisting applicants to put their case, but I have encountered chairs who are less helpful and supportive of applicants who are acting on their own, and if the other side has a barrister it can cause real problems in terms of justice being seen to be done.
I agree with the hon. Lady's basic argument that building on what we have is preferable to a new quango. She talks about barristers, companies being represented at tribunals and the over-formality of the process. Does she accept that, with only about 5 per cent. of discrimination cases succeeding in the tribunal, she is talking about a massive burden on British business? Anything that encourages a surge in claims will make that huge burden even worse.
I have tried to stress the range of alternatives that are now available to deal with employment problems and claims; we are not telling people simply to go to the tribunal. The alternatives include ACAS, which is an extremely important body: it plays a strong role in bringing claimants and employers together and securing some good settlements, without businesses having to spend time going to the tribunal.
Sensible employers recognise when things have not gone as they should in their business. If acts of discrimination or problems with other employees for whom they are responsible have occurred, good businesses will respond to a claim by saying, "Let's settle this. We don't want the bad publicity associated with going to the tribunal." However, there are also bad employers who will not acknowledge when they have got things wrong and discriminated against people. In my example of the cleaner, her employer refused for a long time to accept that it had done anything wrong.
Does my hon. Friend agree that if an employer is the subject of a raft of tribunal cases, that is a sign that something is fundamentally wrong within the company, whether in its management or its grievance procedures? We must also deal with companies not having appropriate procedures in place, which can result in people feeling that they have to bypass what the rest of us would regard as the normal process and go straight to tribunal.
That is correct. Good employers have robust grievance and disciplinary procedures that enable cases to be dealt with within the company. That is the ideal, but things do not always go according to plan.
Does my hon. Friend accept that poor employers are bad for good businesses? Good businesses suffer because they are at a competitive disadvantage when a bad employer undercuts them or uses sharp practice.
I agree with my hon. Friend.
Another case that I dealt with involved a women who had been diagnosed with breast cancer and who was going through a TUPE employment transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981. Both her existing employer and the new one denied that she was their responsibility. Both were large, well known companies and I was taken aback by their response. We had reached the door of the tribunal when I heard through the wall a barrister shouting to both employers that one of them had to take responsibility, and that if the claim reached the tribunal both would get massive bad publicity. We should focus on the useful role that lawyers can play, but stress to employers—good ones—that it is much better for them to deal with claims sensibly and reasonably, lest they get themselves into difficulty in a tribunal.
There are other bodies of which we should be aware. The Free Representation Unit provides advice and representation to people who are not able to access legal representation through the legal aid scheme. The unit comprises young barristers and solicitors who are willing to give their free time to represent people, and they do a sterling job. In addition, barristers give their time for free through the Bar Pro Bono Unit. I commend both organisations, but I do not think that we as a society should rely on people giving up their time for free.
That may well be true. My hon. Friend Huw Irranca-Davies mentioned advice and assistance deserts. One of the good things that the Legal Services Commission has done is provide a framework for community legal services within local authority areas. Bodies that provide advice and assistance can come together and pool their resources to ensure that local communities are aware of what is available in terms of advice and representation.
I am interested in the hon. Lady's comments. What are her thoughts on the merits of Citizens Advice, which has a national network of bureaux and provides a free service?
I commend the work that Citizens Advice does. The problem in my constituency, Hull, North, is that often at 8 o'clock in the morning the citizens advice bureau has a queue of people wanting to get in to obtain advice. There is still a great deal of unmet need. The CABs and law centres have an important role to play. I hope that in future debates I may be able to put the case for more funding being made available to them. At present, as other hon. Members said, funding may depend on the political complexion of the local authorities in the area.
In Hull we had a very good law centre that was funded not only by Hull city council, but by some of the surrounding local authorities. Hull city council recognised the important role that Humberside law centre played. The other local authorities around Hull, which were Tory-controlled, unfortunately decided not to continue to contribute to the work of the law centre, so they withdrew their funding. That resource for local people in east Yorkshire has disappeared. From looking back at cases, we know that Humberside law centre led the way in a number of disability discrimination cases, and in compensation cases involving trawlermen in Hull who had missed out on compensation that they were due when the fishing industry—
On that point, does my hon. Friend recognise that if—I am not making any assumptions—the Bill were not to proceed, we would need to consider how to ensure that the diverse providers of advice, legal assistance, mediation and arbitration continued to operate effectively? We have made great progress, but I am not yet convinced that the situation is completely coherent across the whole UK.
Is there not a problem with some—not all—of the no win, no fee organisations that seem to get hold of people before they have received proper advice? Often they lead people up the garden path or get them to sign up to pay for an insurance policy to fund the case. People who have come to see me have been asked to pay £150 up front. They think the case is proceeding, but they are asked for another £250, and before they know it, a large sum of money has been expended, often to no good end.
That raises an important issue. Some time ago I practised immigration law. There were many rogue immigration advisers about. The Government have introduced accreditation for immigration advisers so we know who is giving advice and we can make sure that they are giving good advice. There is a case to be made for the accreditation of employment advisers as well.
In conclusion, although I support the principle of legal representation in employment tribunals, I do not agree with the various clauses relating to the setting up of a board separately to deal with that. There are issues for the Legal Services Commission to examine. The clause dealing with the budget is not a sensible approach. We must be realistic and set store by value for money. It is not sensible to let bodies determine the level of funding that they want. I have problems with that clause.
Of course there must be a merits test for any case that is to be taken forward. As I started by saying, most good representatives, whether legally qualified or not, will make sure that they properly advise their clients about the case before the tribunal takes place, so that they know whether they have a good chance of success or not. I should be interested to hear about the example in Scotland. We must have regard to article 6(1) of the European convention on human rights and the opportunity for people to have a fair hearing, but the Bill is not the best way forward for employment law or employment relations in this country.
I want to make a few introductory points before discussing the Bill itself. The Bill's purpose is to make provision about representing and assisting complainants, and it highlights—as some of today's contributions have also done—the increasing complexity of employment tribunals. One root cause of the need felt by Mr. Singh to introduce this Bill is the fact that employment tribunals can be very complex. Indeed, some 32 different Acts of Parliament can give rise to claims that go before employment tribunals, which is perhaps why a number of parties on both sides feel the need to be represented.
As several Members have noted, there are already many places where those wishing to bring claims to employment tribunals can seek advice. The Employment Tribunals Service website lists a number of sources of free advice, several of which have been mentioned. They include ACAS—I shall come on to trade unions shortly—citizens advice bureaux and community law centres. As Ms Johnson said, solicitors and other professional advisers sometimes give their services free on pro bono work. In most constituencies, a range of organisations already exists from which people can seek advice, so setting up a new quango and a new form of provision seems unnecessary.
The hon. Lady also said she would like to see an increase in representation. However, the flaw in the Bill as drafted—if it is to achieve the objectives that the hon. Member for Bradford, West seeks—is that it provides no new funding; rather, it simply cannibalises funding for existing bodies. The money for the new board would come straight out of the budgets of the Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality. As a result, they would have to cut their funding for the many valuable groups working on the ground that provide such services in our communities. Taking the money away and giving it to another organisation would damage many of these existing organisations, of which Members have had experience.
In trying to justify the need for this Bill, the hon. Member for Bradford, West failed to make a clear case for the argument that valid discrimination claims are not finding their way to employment tribunals. He mentioned some individual cases, but in passing legislation that would affect all the various commissions, and businesses and individuals throughout our country, we need to be sure that there is a clear need for it. He failed to establish that such a need exists. He said that he has consulted the Equal Opportunities Commission and the Disability Rights Commission, and that they oppose the Bill. I shall deal with the impact of such opposition a little later, when I consider some of the clauses.
The role of the trade unions has also been discussed. One Labour Member pointed out that in the private sector, just one fifth of employees are in a trade union. Trade unions should focus on providing excellent representation in the workplace. If they spent more time on that aspect of their role, and less on the party political aspect, they might find it easier to recruit members in the private sector workplace.
I genuinely welcome the hon. Gentleman's comments, and if for no reason other than the issue that we are discussing today, will he join me in proactively encouraging every employer not only to recognise unions in the workplace, but to support their active participation in it? Does he further accept that some employers are a little recalcitrant in their approach to unions?
No, and I disagree with that approach. It is the role of the unions to explain cogently to potential members the services that they provide. It is their job, not the employers', to recruit members. If unions are so weak that they need employers to do their recruiting for them, it is perhaps no surprise that they are in such a state.
I agree, but the employee must be able to be approached by the union without being threatened with the sack, demotion or exclusion, as people sometimes are as a result of talking to someone in the union or becoming active in it. My hon. Friends and I know many cases where unions have tried to recruit in the workplace, but employers have adopted all sorts of tactics to obstruct them. The same applies to recognition, even at the stage where cases go to the Central Arbitration Committee. For example, employers may move employees out of certain groups of workers in order to make the union membership lower. There are all sorts of tricks and tactics going on out there. Yes, let us have a level playing field, but the employer must accept it as well.
That raises an interesting point, but if the hon. Gentleman will forgive me, I shall focus my remarks on the Bill that we are debating. We could have a much wider discussion on the role of trade unions in employment, but we are talking now about the advice and representation that unions can provide in respect of employment tribunals. One important point that emerges from our discussion is that if unions improved their provision of such advice, they might be able to recruit more members. However, the unions have been singularly unsuccessful at doing that, so perhaps the hon. Gentleman should talk to some of his colleagues in the trade union movement.
I am half tempted to warm to the hon. Gentleman for his words on the unions. He seems to recognise the quality and depth of knowledge that a union can offer, but I wonder whether he would go one step further. If the Bill were to fall today, who else, in the absence of a union in the workplace, could an individual at risk of discrimination turn to for the requisite expert advice? That is my question to the hon. Gentleman. He is half way there already.
On the question of the role of trade unions, I would have thought that, in the present circumstances where much advice and information is available to the individual that was previously provided by the unions, it is better to advise employees of other options rather than simply encourage them to join a trade union. That is only one option, but I am mindful that I may be straying from the main subject of today's debate.
To answer the question put by Huw Irranca-Davies about the avenues open to those who do not have the services of a trade union, I have already provided, as have others, a comprehensive list of the help available. I mentioned ACAS, citizens advice bureaux, community law centres, solicitors and other professional advisers who give their services free under pro bono work. If the services of a union are unavailable, people can turn to a range of other organisations.
I am sorry to labour the point, but in the absence of a union, does the hon. Gentleman believe—contrary to the view expressed a few moments ago by Mr. Vara—that it is incumbent on the employer to set out the grievance policies and procedures clearly to anyone who thinks that they are suffering from discrimination and to affirm that the company actively encourages employees to come forward with their grievances about discrimination in the workplace?
Of course—any good employer will have a comprehensive set of policies and grievance procedures. I used to work for a large company that had a comprehensive set of procedures and made every effort to deal with cases within the company. Frankly, that is usually the best policy for all concerned. Employment tribunals are usually set up only after a failure in that respect.
Before referring specifically to the Bill, I want to say a few words about employers and the way in which employment tribunals have developed. If I understand it correctly, when tribunals were first introduced the laudable idea was that their hearings would be relatively straightforward and able to deal with most cases. It was thought that neither side would need to be legally represented, which would keep the costs down. However, because things have become much more complicated, that is often not the case. Hon. Members have referred to employers using legal representatives. The last thing that small employers want to do is hire an expensive lawyer, who will send a bill every time the client talks to them, writes to them or coughs in their presence. Employers hire lawyers when they read about the more extreme examples that come before employment tribunals.
I accept what the hon. Gentleman says. There is a problem for smaller employers who often panic when faced with such situations and rather than try to resolve the problem with the employee, they bring in expensive lawyers, which they do not need to do. Employing a barrister or taking cases further is a massive cost to an employer, whether big or small, and it certainly does not help the employer-employee relationship.
That is a good point, but employers would not take that course if they felt that there were other options. There is no level playing field for employment tribunals, in the sense that if employers have to use representation, they must pay for it, whether they win or lose. Even if they win the case they are still saddled with a large bill, while many of those who represent employees are not paid by the employee.
The hon. Gentleman makes a good point, but a person does not need a lawyer to go before an industrial tribunal. Like my hon. Friend Mark Tami, I know of cases where employers have hired lawyers for no apparent reason.
I draw the attention of Mr. Harper to the Employment Act 2002, which gave ACAS far more powers and provides for free advice so that fewer cases come before tribunals. The measure tries to ensure that small employers adopt basic grievance procedures. If they follow those procedures they should never need to go before a tribunal.
That is a good point and one of the things it highlights is the divide between larger and smaller employers. Large companies are able to employ specialists, they have human resources departments with specialists in all types of law. Smaller companies often have no full-time member of staff who is familiar with all the legislation—as I said earlier, I think there are 32 Acts relating to such matters. It is extremely difficult for a small company, even one that is desperately trying to do the right thing and provide an excellent workplace, to be sure that it is complying with all those pieces of legislation. That is one of the reasons why, when they are hit with an employment claim, they panic, as Mark Tami said, and reach for a lawyer.
It is not simply a question of the strict legality of the matter. For a company to be accused of an act of discrimination is a reputational issue. Does my hon. Friend agree that although well over half such cases fail, the employer has to take each one seriously?
That is the case. That is one of the reasons why employers are concerned and feel that, because of the threat to their business—for example, from damaging press reports—they have to be legally represented.
I have concluded my preamble and I now turn to the Bill. I note that 11 Members supported the hon. Member for Bradford, West, but I have seen only one of them in the Chamber this morning—Dr. Iddon, although he is not in his place at the moment. I hope that we shall hear from as many of the Bill's supporters as possible during our proceedings. I look forward to that.
When I was considering the purposes of the Bill, I wondered why, as discrimination cases account for only a proportion of those that go before an employment tribunal, the hon. Member for Bradford, West felt that the extra quango should be set up only for discrimination cases. He seems to be saying that such cases are more important or more worthy of assistance than others that go before employment tribunals.
My concern, which caused me to introduce the Bill, is the fact that the equal opportunities bodies responsible for tackling discrimination are not doing so at the individual's level. Last year, those organisations supported 250 cases of strategic significance out of more than 20,000 that were lodged. My concern is that those 250 people got the support that they needed and deserved but thousands of people did not, and did not have access to justice in terms of their claims.
The hon. Gentleman makes an interesting point, but earlier some of his hon. Friends pointed out that the commissions to which he has referred do a great deal of work through funding organisations on the ground. They might not themselves represent very many claimants, but, because of the funding that they provide to grass-roots organisations—I see that many hon. Members agree—they offer indirect support to those cases. With respect, I think that his argument may be flawed.
Accreditation is one of the functions of the board set out in clause 2(2). It strikes me that requiring the tribunal board to go through a process of accrediting organisations to say that they are appropriate to provide representation, will not only be a cost for the new quango but will impose a whole set of costs, red tape and burdens on all the organisations that we have mentioned that provide assistance to people going before employment tribunals. No doubt such organisations will have to fill in long, complicated application forms, explaining how their organisation works and making the case for it to be accredited. It will place a cost burden on all those very worthy organisations that provide support to those going to employment tribunals, and will reduce the amount of effort and work that they can put into representing people, which will have the opposite effect to the one that the hon. Member for Bradford, West is seeking.
Given that the purpose of the new board is to provide representation, I am a little concerned that clause 2(3)(c) says that it may
"undertake, or arrange for or support (whether financially or otherwise), the carrying out of research or the provision of advice or information."
It seems to me that that research work and provision of advice information is done quite well by a range of organisations, whether Government or other third-party bodies.
I hope that my hon. Friend has not entirely left the subject of accreditation yet, because his eye must have fallen, as mine has, on clause 5(5)(b), where there is a rather peculiar provision that if an accredited body does not show any interest in a case, the case can be given to an unaccredited body. Does he agree that that makes the whole concept of accreditation somewhat bizarre, and does he not think that there is absolutely no protection in the Bill against cowboys being given taxpayers' money to represent complainants badly?
The hon. Gentleman makes the helpful point that an organisation already exists to do the required research.
Clause 3 relates to the funding of the board, on which we have already had a number of questions, the most perceptive of which was asked by my hon. Friend Mr. Clifton-Brown. Certain discrepancies have been revealed. The hon. Member for Bradford, West spoke about some of the alternative organisations that provided representation and assistance and said that their funding was precarious because it was arranged annually and could be withdrawn. But clause 3(1) only refers to annual funding. It states:
"At least three months before the beginning of each relevant financial year, the Board shall prepare and send to the Lord Chancellor an estimate of its funding needs for that financial year."
So that does not give many of those organisations longer-term or more stable funding arrangements than they currently have.
The most concerning part of the clause is subsection (3). It states:
"It shall be the duty of the Lord Chancellor to secure that there is paid to the Board" effectively any amount of money that the board so require.
I noticed that the Paymaster General was in the Chamber earlier. No doubt, she would be extremely concerned that the board, the composition of which I will mention later, could say—let me propose an outrageous example to make the point—that it required £1 billion in funding and that the Bill would put on the Lord Chancellor the duty to supply that sum, which would require much of his budget and completely destroy the EOC, the DRC and those other commissions. He would have no power to refuse to supply that funding. Such a commitment is extremely open-ended.
I agree with the hon. Gentleman, but would not other funding Departments be caused distress? The board would be unique in any spending round because it would have first call on the money. Other Departments would be very concerned about that, given their annual budgets and an array of other issues.
The hon. Gentleman makes a very good point, particularly given the board's composition—none of the people on the board would be democratically accountable. To give them an ability to jump straight to the head of the funding queue and secure resources ahead of many other worthy things seems very worrying.
The Bill would give the Lord Chancellor no option but to provide all the funding that is requested, but the hon. Member for Bradford, West admitted in his opening remarks—I hope that I quote him accurately—that he had no idea of how much money would be involved in setting up the board, in its operations and in paying to support claimants. Given that he has no idea of how much the board would cost, he can therefore have no idea of how much damage it would cause to the rest of the Lord Chancellor's Department and the other commissions that would be raided to pay for it. That is extremely worrying.
Clause 5 says that the board must invite tenders for the provision of accredited advice in each area. It would be helpful if the hon. Gentleman replied to this point. When a lot of public bodies issue tenders for publicly funded work, they must comply with some complex procedures under European Union legislation about advertising such work, providing a level playing field and ensuring that companies are given a proper opportunity to tender. I should be interested to know whether he has given any thought to how that tendering process would work in practice.
The process envisaged in the Bill could ensure that fewer and fewer organisations tendered for the work. A lot of local community groups are likely to be small. Would they have an adequate opportunity to tender for work, given the complexity of the tendering process? A lot of those smaller organisations would be put out of business, and only a few national organisations would have the opportunity to tender. I do not see the hon. Gentleman rising to his feet, so perhaps he has not considered those issues.
Clause 5(4)(b) talks about making
"arrangements for the payment to the accredited body of such amounts as are reasonably incurred by that accredited body in carrying out those functions".
Nothing in the Bill would set up any process or financial arrangement for the board that would give me confidence that it had processes in place adequately to scrutinise the expenditure of public money and to ensure that it was spent wisely.
Under clause 5(6)—my right hon. Friend Mr. Forth drew attention to this—if the board put out a tender for work to accredited bodies and none of them was interested in taking part, the work could be awarded to other organisations. That subsection talks about making arrangements to do that, but no necessary processes would be put in place. So the tendering process would be open and transparent, but if people did not tender under that process, as would seem likely in many areas, it is not entirely clear what other robust protections would be in place. The danger is that members of the board would award contracts for spending taxpayers' money in a way that was not transparent and did not obviously give good value to the taxpayer.
Clause 6 is on codes of practice. I was interested in the other equality commissions that the hon. Member for Bradford, West talked about and that I touched on in my opening remarks. They are mentioned a number of times in the Bill as having a partnership role with the board. I was struck by clause 6(4), which states:
"Before preparing a code of practice under this section, the Board shall consult—
(a) the equality Commissions".
May I draw the hon. Gentleman's attention to sub-paragraphs (1) to (6) of paragraph 2 of schedule 1, on the membership of the board? The position is worse than he says, because, under paragraph 2(2), a number of members of the board would be appointed by the commission for equality and human rights. It would be contradictory to have two roles.
That is a very good point and one that I had noted and was coming to later.
The board would have to work closely with the equality commissions and it strikes me that if, when it is set up, its funding is arrived at by raiding the budgets of those commissions, the relationship between the board and the commissions will not start off as a particularly happy one. It struck me that, given that they would be forced by the Bill to work closely together, the provision might not work terribly well.
Clause 7 talks about the agency arrangements, and this is where the point made by Mr. Jones becomes even more important. The clause says that arrangements may be made between the board and the equality commissions for the functions of the board to be carried out either by members of the equality commissions or by members of staff of those commissions. The Bill proposes setting up a board that would be funded by raiding the budgets of the equality commissions, and the board could then turn round and sub-contract the work to the very commissions whose budgets it had just raided to enable it to be created in the first place. That would mean a lot of red tape and complexity and the establishment of new quangos, but not any appreciable change in the delivery on the ground. However, there would be much more cost, which means a lot less funding available for the delivery of representation work.
I know that when my hon. Friend carries out his analysis of schedule 1 he will come to the board and its membership. Does it not appear that the Bill would set up conflict in many different ways? We would have an incestuous relationship between the board and these rather ghastly commissions. Their memberships would overlap, they would appoint one another and they then would argue with each other about funding. This is surely a prescription for resentment and a complete lack of focus and productivity.
All my right hon. Friend's points are well made, and he has made them rather better than I could have done.
The hon. Member for Kingston upon Hull, North talked about making sure that we have value for money in these processes. Clause 9 talks about giving the board a duty to
"carry out its functions effectively, efficiently and economically".
However, it does not define any of that, and it does not give the board any means by which to prioritise between carrying them out "effectively" and "efficiently and economically". There is no way of weighing that up. Given the other provisions in the Bill, it strikes me that it may well be biased towards the "effectively" and not worry too much about the "economically".
The other point overlaying the debate relates to the position in employment law, and the hon. Member for Bradford, West focused his specific examples on complicated cases. Therefore, if we are to pass the Bill, it is incumbent on us to try to make it as simple and easy to understand as possible. The interpretive provisions in clause 11 refer to when the Act would apply to proceedings and how someone would know whether their particular case was covered by it. There are detailed references to sections in many other Acts of Parliament, so how could any member of the public who might benefit from this Bill be clear about whether they fell under its provisions? They are very complicated. There would be a little sub-industry, with people arguing about whether their cases fell within the realms of discrimination so that they could get assistance from the board, or whether they were cases of a different nature, which would mean that they would get no such assistance. That would add complexity to an area that is already too complicated.
Clause 12 details the meaning of an eligible complainant: the sort of person who would benefit—if benefit is the right word—from the Bill. The clause is both complicated and specific. The hon. Member for Bradford, West focused on dealing with discrimination, but I have difficulty reconciling myself to a Bill that would only help people to take complaints about discrimination to employment tribunals, rather than about other matters. The hon. Gentleman is being discriminatory by picking a subset of the cases that go to employment tribunals. To introduce rules about eligibility would create a lot of complexity.
I thought that the hon. Gentleman would raise this matter when he considered the membership of the board. There is a further contradiction in paragraph 2(4) of schedule 1. Will he comment on the fact that the criteria for appointing three of the 10 individuals who will serve on the board include not ability but the fact that a person has
"brought proceedings to which this Act applies"?
The hon. Gentleman is again perceptive and anticipates that I had noted that point as something about schedule 1 to which I wanted to draw attention. There is an even worse provision that shows that the hon. Member for Bradford, West might be guilty of discrimination, but I shall touch on that later.
Clause 13 sets out the wider meaning of assistance, but given that the hon. Member for Bradford, West has not estimated the amount that the Bill would cost, it is rather open-ended. It says that the assistance that may be given varies from advice and trying to settle a matter to
"arranging for the giving of advice or assistance by a solicitor, counsel or advocate" and arranging for representation by a whole range of people. More interestingly, such assistance could include the payment of many of the costs that could be incurred by a person going to an employment tribunal, even down to travel expenses. That would tilt the playing field further towards a person going to an employment tribunal and against others, especially small businesses.
Before the Bill makes any progress, the hon. Gentleman should give us a detailed estimate of its possible cost. I do not think that he is correct, but he says that thousands of people who suffer discrimination are not able to take their cases to employment tribunals because they do not receive appropriate advice. Labour Members have estimated that some cases that reach tribunal can cost thousands of pounds. Simple arithmetic shows that, if the Bill allowed those thousands of people to take their cases to tribunal, thousands of cases costing several thousand pounds each would lead to a cost of millions of pounds. The hon. Gentleman thus has a duty to the House to quantify the costs that might be incurred as best he can.
I am sure that we have all been waiting to get to schedule 1, which sets out the constitution of the board, with bated breath. I was appalled to find that paragraph 2(2) of the schedule says that at least one member of the board who is appointed by the commission for equality and human rights must be, by law,
"a disabled person or a person who has a disability."
I am not quite sure of the difference between a disabled person and a person with a disability—the phrase seems a little repetitive. Providing that there must be a disabled person on the board is a piece of discrimination. Just as we should not discriminate against people with disabilities, people should not be given jobs on boards because they have disabilities—but that is what the Bill says.
Does the hon. Gentleman agree that, theoretically, someone who had a disability, who was from an ethnic minority and who had also taken proceedings before the tribunal might be able to apply under all three categories?
Yes, but there is a more serious point here. The number of members of the board would be limited, and by statute one of the positions would have to be given to a disabled person, so if a number of people applied, there could be indirect discrimination against someone on other grounds. Someone from another minority could apply, and they would not be given a position on the board because the quota for a disabled person had to be filled. That seems like nonsense. Whether the provision is badly drafted or whether that was the intention I do not know, but it seems rather bizarre.
People would expect a board funded by the taxpayer to have some element of independence, yet extraordinarily, paragraph 2(4) says:
"Three members of the Board shall be chosen by the Commissioner for Public Appointments on merit from amongst ten persons whose names have been chosen by lot from amongst persons who have—
(a) brought proceedings to which this Act applies".
The board would be packed with people who had not only brought cases to employment tribunals but, specifically, had brought cases of the kind with which the board is supposed to help. If that is not stacking the deck and loading the dice, I do not know what is.
I would prefer a more open selection process. I do not know whether other hon. Members can help me by telling me whether the criteria suggested are common in legislation, but they do seem remarkable.
If one wanted to set up such a board—which I do not—surely one would want on it people competent in administration and in ensuring that money got to the right place. The suggested constitution of the board, with people who have been aggrieved by decisions of a tribunal, and those with roles in the various commissions, is really one for a campaigning body. Is that the right kind of body for this purpose?
Does my hon. Friend agree that paragraph 2(4)(a) could be taken to mean that someone who had brought a frivolous complaint that had not yet been resolved could qualify for membership? As membership would be drawn by lot, is it not therefore possible that several frivolous complainants could qualify for the board?
My right hon. Friend's reading of the wording is accurate. There is no requirement that the proceedings that such people have brought should even have got past the pre-hearing stage. They could have brought proceedings that had no merit, yet they would still qualify to apply for membership of the board.
The words of choice for Labour Members seem to be openness and transparency, but it is worrying that paragraph 2(5) says that another five members should be chosen
"by the members of the Board appointed in accordance with the preceding provisions".
That strikes me as rather an incestuous process. That is one of the problems with police authorities. Part of the board, appointed under one set of rules, then picks some more people, which means that there is a rather incestuous relationship and it is not entirely clear on what grounds people have been chosen. That is not a satisfactory way of putting a board together.
Paragraph 10 is about the remuneration and pensions of members of the board. Again, it is disappointing that we are now talking about setting up another quango, whose chairman will be paid. In fact, thinking about what my right hon. Friend the Member for Bromley and Chislehurst said, there is an interesting conflict. Bearing in mind the fact that the board would have the power to set a budget that the Lord Chancellor is compelled by statute to deliver, the Bill states:
"The Board may pay to the chairman or any of the other members of the Board such remuneration as the Lord Chancellor may determine."
That would set up an interesting process whereby the Lord Chancellor could trade the salaries of the board for the amount that the board decides it has to tell the Lord Chancellor he has to deliver. A game of bluff could develop, with the board requesting a vast amount of money and the Lord Chancellor doing deals with it to reduce the amount in return for the board receiving more money. I do not think that the Lord Chancellor would welcome that worrying conflict and nor should we.
Paragraph 10(2) deals not just with paying board members, but with paying them pensions, allowances, fees, expenses and other gratuities. Setting up more public sector pensions for people on the board when we already have a vast problem with the affordability of public sector pensions is not something that I would welcome.
It is perhaps worse than that. Under the heading "Staff", paragraph 11 says:
"The Board may appoint such staff as it considers appropriate, on such terms and conditions as it may determine."
If it decides to have an open-ended budget, the organisation could employ thousands of people by the end of its term of office.
The hon. Gentleman makes a valuable point. The rules under which the board would operate are extremely worrying. Paragraph 11 is a concern. It mentions
"such staff as it considers appropriate", with no checks or balances. Organisations are usually constrained by budgets and the priorities awarded by the Treasury, but as the Treasury has no control over how much money the organisation gets, it could grow like Topsy. That would worry those in all other Departments.
Paragraph 19 relates to supplementary powers. It is also worrying that the board has the power to
"delegate any of its functions (to such extent as it may determine) . . . to any member of the Board . . . to any member of staff of the Board, or . . . to a committee consisting of persons each of whom is . . . a member of the Board, or . . . a member of the staff".
Given that no minimum requirements are set for the size of such committees and no restrictions are placed on any of those powers, the organisation could have an unlimited budget, extracted from the Lord Chancellor by statute, and employ any number of staff, yet all its functions could be exercised by a single individual, with no control at all. So the Bill could give an individual the possibility of running a vast organisation that has a huge budget and over which there is little control. We should not be doing that.
An alternative and better approach—it is probably fairly clear that I am not a great fan of the Bill and am not likely to support it—would be to draw on some of the helpful remarks of Labour Members. We could make employment legislation less complex and make the knowledge of those organisations that already provide advice in our communities more widely known, so that people can get to them more easily. Perhaps we should encourage Labour Members who have strong links with trade unions to make those unions better advocates of the services that they offer for representation. Those need to be better marketed. That would be a more suitable way of addressing discrimination.
I accept what the hon. Gentleman says, but does he accept that employers also need a bit of educating about some of the services or advice that is available to them so that they do not get into difficulties in the first place?
That is a valuable point. When I listed the organisations that provide advice, it was very much from an employee's perspective. It might be helpful, particularly for smaller employers, if the employment tribunals website—I ask it to forgive me if I do it a disservice, because it might already do this—listed organisations that provide at least the first level of advice to employers, especially those that do not have easy access to professional advice.
The hon. Gentleman may or may not be aware that Yorkshire Forward, the regional development agency, is working with ACAS. Together, they have formed a partnership that involves about 100 small and medium-sized firms in the Yorkshire and Humber area. The partnership is working with small employers to tackle equality and diversity.
I would hope that employer organisations did not act as the Engineering Employers Federation did on recognition rights. Rather than encouraging its members to engage with trade unions, it recommended that they go to Eversheds, which ran a good union-busting-type operation. I hope that employer organisations do not go down that road.
Heaven forbid my ever recommending to anyone to rush off to enrich large firms of City lawyers.
Whatever problems we have with people having access to employment tribunals, the key point is that we would be setting up a quango that has unlimited funding and unlimited numbers of staff at the expense of the various equality commissions that already exist, which are already funding organisations to provide access to tribunals. That seems a retrograde step and one that I cannot support.
I begin by congratulating my hon. Friend Mr. Singh on introducing the Bill and on inspiring quite a high-quality debate on access to justice for all in respect of discrimination and in a wider context. How do we ensure that the most vulnerable in the work force—people who are not necessarily represented by a union or people who do not have easy access to the legal network—can justifiably bring discrimination cases?
At the risk of jeopardising the career prospects of Mr. Harper, I congratulate him on his extremely rational and reasonable contribution, both in terms of the principles he was speaking to and his analysis of the Bill clause by clause. I suspect that I might have knocked his chances back by about six months at least.
Order. Hon. Members should intervene when they are conceded the opportunity to do so and should not shout at one another across the Chamber.
I took the interjections in the spirit in which they were made in contributions to the debate, Mr. Deputy Speaker.
Surely the principle of access to justice for everyone is absolutely right. A major bone of contention is the expense and scope of the proposals—the belt-and-braces approach. It is said that, in effect, the Bill is a universal charter of prescription, and there is the worry that it is a universal charter for legal aid rather than a more proportionate response that would target those with the greatest need whose complex cases require full legal assistance against what are often highly professional teams of solicitors and barristers. That is one of the major criticisms.
Linked to that is the argument that, in some ways, the Bill, well-intentioned though it is, is unnecessary on two counts. First, the quality of advice and the extent of legal representation is already available. I have voiced concerns about how complete that coverage is. It is said that by and large the legal advice is already available.
Secondly, the Bill militates against the Government's aims of early intervention and non-litigious solutions such as conciliation.
My hon. Friend makes a point about which I, too, am very worried. Although, as he says, a lot of advice is available, we must have a proper network that ensures that people are aware of it.
I entirely agree. On the latter point, availability is not the only issue, and we have, as a Government, made great strides with the various legal services and the voluntary sector to extend coverage. There is also the fundamental issue, which has frequently been mentioned in the debate, of how we draw these matters to people's attention when they cannot easily turn to somebody who can give them advice, either because they are in a workplace where they are actively discouraged from doing so or because they simply do not have access to a well trained, highly skilled and capable representative, union or otherwise. I shall return to that issue later.
Members have mentioned the principle that prevention is better than cure. The aim is to keep cases out of the legal system, not simply to try to pull back money from solicitors wherever possible but because it is far better to deal with issues as they arise. We should aim for early intervention rather than people getting into the costs, stress and anxiety caused by making a legal case and taking it through hearings and tribunals. That is very much the thrust of the Government's approach.
The dispute resolution process can take many forms, including mediation and arbitration. The use of grievance and disciplinary procedures is part of the process. I have learned through my experience in various voluntary sector organisations how crucial effective working relationships with all staff are. Employers should actively encourage people to express concerns or grievances, rather than slap them down or create a culture in which they feel unable to speak. In addition, there must be written procedures, even if, as my hon. Friend Mr. Jones said, they are the basic required grievance and disciplinary procedures.
That is a crucial point, because not only the employee but the employer must be aware of the procedures. The grievance procedure allows an employee to raise an issue and have it dealt with. The vast majority of cases do not result in a tribunal or in the employee leaving the company, but are resolved through the grievance procedure.
I entirely agree. The point has been well made several times.
Perhaps I can give succour to those who have been concerned by some of the comments of Opposition Members. We should be trying to improve employers' access to advice that enables them easily to put in place written procedures, as well as training and upskilling that does not involve sending people away on a two-day course at immense expense. We have done work on that already, but we need to keep applying pressure to make it easier and simpler for employers. That is particularly important not only for small businesses, but for small organisations in the voluntary sector, which have limited resources.
Does my hon. Friend agree that the thrust of the Government's approach in the Employment Act 2002 was to ensure that disputes are resolved in the workplace, and that it is having an effect? The Government are committed to ensuring that cases do not get to a tribunal, which clearly proves that they are trying to ensure that good employment practice is spread more widely, contrary to the ignorant and ill-informed views of Philip Davies.
That should be the clear message from the House today. The aims of the 2002 Act were specifically
"to create a successful workplace through fairness and partnership at work and make it easier to settle disputes in the workplace".
That is the crux of the matter. My worry is that, if we impose an overarching, super-organisation at the top, it will go against that ethos. The principle of resolving disputes at the appropriate level, which the Government rightly support, may mean progressing into tribunal or into court. However, if we look at it as a pyramid shape, the vast majority of cases should be capable of resolution at the base—in the workplace—before they reach the system of tribunals and court hearings.
At court, one of the things that the judge will look at is whether dispute resolution has been tried. That is right and proper. He will look at an application poorly if one of the parties has been offered the option of alternative dispute resolution and said that they were not interested. That is absolutely right. There has been a fundamental change in the ethos and the way in which we deal with the issue.
If the applicant refuses to go through a company's formal disciplinary procedure, the application will automatically fall, even if it has good cause in terms of grievance. That flies in the face of the claim that frivolous and vexatious cases are queuing up to go before employment tribunals.
That is correct. It is worth drawing attention to one of the most instructive cases in this regard, the Burchill and Bullard case in 2005. In his summing-up, Lord Justice Ward made four specific points. One was that the defendants' belief that their case was so watertight that they did not need to resort to alternative dispute resolution was unreasonable. Secondly, in his opinion, their claim that the case was far too complex for alternative dispute resolution was "plain nonsense". Thirdly, the costs of alternative dispute resolution would have been a drop in the ocean—we have said it repeatedly—compared with the legal costs that were incurred by bringing it to that level. Finally, Lord Justice Ward said:
"The defendants cannot rely on their own obstinacy to assert that mediation had no reasonable prospect of success".
That is a fundamental challenge to what used to happen. Previously, there was almost a charter saying, "Get straight to the lawyers; take it straight to the highest level." There are now appropriate levels at which disputes can be dealt with.
That is a key point. The grievance procedure in many ways acts as a cooling off period. It stops people almost straight away bypassing everything else and going straight to lawyers. I know from my casework that once lawyers are involved, reasonable cases that could be resolved by other means often get very nasty and expensive. All employers, regardless of whether they are big or small, have grievance procedures enabling talks between them and employees. In the vast majority of cases, that results in a sensible outcome.
Indeed. It is vital to put on record the importance of looking at it as a process. It is not a one-size-fits-all approach. We are saying, in tune with what we have done in recent years, "Let us solve these issues, where we can, at the earliest possible level of intervention, without going through the courts." Lord Justice Ward said in his summation:
"Mediation has established its importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value."
There is a strong message there for the whole legal profession. In a debate such as this, it is tempting to indulge in scurrilous anti-legal profession stories, but, tempted though I am, it would be unfair to do so. As we all know, many legal practitioners do good work, especially at the edge, where they deal with some of the most vulnerable members of society. However, there are also those who are willing to exploit this area of law. Perhaps the Minister will say how we can prevent people who suffer from the present gaps in provision from becoming vulnerable to those who would take money from them, even though there was no hope of the case being taken further.
I applaud the aim of the Bill, which is to deal with what we might call equality of arms. Where two individuals or an organisation and an individual confront each other at any stage of a dispute they should have the same capability, expertise and skills on which to draw to present their case in the best possible way. The starting point is article 6 of the European convention on human rights, which has been incorporated into law in this country through the Human Rights Act 1998, with which the Legal Services Commission and the Department for Constitutional Affairs have a duty to comply. Article 6 establishes that people must have effective access to courts and tribunals for civil cases; that there should be equality of arms; and that there should be no disadvantage for either party, be it the person making the complaint or the small business man—or the small voluntary sector organisation—against whom the complaint has been made. The article allows that, sometimes, that can be achieved without legal aid and without resorting to solicitors and barristers, other than in exceptional circumstances.
In England and Wales, we already have provision for exceptional funding. Many of the cases that have been highlighted in this debate by hon. Members on both sides of the House have been peculiarly complex and challenging; they do not fit into the standard tribunal approach. In such cases, it is right and proper that there be a method of funding available to ensure equality of arms. I argue that exceptional funding meets that requirement.
Much has been said about how different provision in Scotland is. In fact, the Scottish system provides aid where the case is evidently complex. I regard that as very similar to the system of exceptional funding. Although there is a difference, it is not as great as it has been made out to be.
Indeed there are, but they are deemed to be exceptional circumstances. They are extremely rare—[Interruption.] My hon. Friend Kerry McCarthy tells me that we are talking about six cases in the past five years. Rightly and properly, there is access to funding in England and Wales, and our system is not that different from the one in Scotland.
Does the hon. Gentleman agree that exceptional funding relates to the whole case load of tribunals and that, in discrimination cases, the EOC and other commissions fund the significant cases that will amplify the law?
I agree. The hon. Gentleman's point is well made, but what analysis has been made of cases that may have slipped the net? An important premise of today's debate is that many of the necessary mechanisms and agencies already exist and operate. I am more interested, therefore, in an analysis of the cases that were not successfully taken up at an early stage.
My hon. Friend makes an excellent point. I hope the Minister will address it in her remarks.
Let me explain why I believe we have many of the right mechanisms in place. There has long been a tradition of support in the workplace. Support has come from colleagues, unions, friends and, increasingly, voluntary sector organisations. The diversity of support that is available from the beginning of a potential case or from the early mediation stage ensures that widely differing cases and circumstances are recognised. In an intervention on my hon. Friend Mark Tami, I mentioned the case of homeless young single males in the Bridgend area. They are exactly the sort of people who would not reach out or be reached out to by a normative countrywide organisation. They need individuals who are trained and well funded to work closely with them and give them advice. The tradition of grassroots support should not be jeopardised. Community legal services have traditionally sought to maximise their impact in the union and the not-for-profit legal support sector.
Legal help, formerly known as the green form scheme, has been subject to means-testing and the merits of the case. So there is a filtering system and a progression that tests the efficacy of a case and whether the individual requires financial support to pursue it. Exceptional funding under the Access to Justice Act 1999 is available for complex cases, as we have discussed. The reason that so few cases qualify is that they are examined individually and recommended by the Legal Services Commission.
The question is whether the principle of targeting resources on those whom we recognise as most requiring assistance—the equality of arms issue—is right or whether we should adopt a much wider approach. I believe we should fine-tune the current system, rather than try to replace it or overlay it with a different system. The history of such reorganisations is that they lead to confusion and inefficiency, instead of tightening up the system. However, I have several questions that I should like to pose and ask the Minister to respond to.
First, what evidence is there that under the current system people are losing out? Has there been any independent review of what is working and what is not working in the current system? My hon. Friend Ms Johnson touched on that. There are independent bodies out there, and in the light of the debate perhaps it is timely to discover where there are gaps in provision. Secondly, is access to justice under the present system clear enough? Is it sufficiently well signposted at the time of need in the workplace? Thirdly, how seamless is the system? In the progression from early identification to deciding whether the case should be solved through early arbitration or mediation or progressed through tribunals into the court system, is the signposting clear enough or are there differences, depending on location and the organisation in question?
At the very first level—trade unions, reliance on work colleagues and so on—how confident are we as a Government that there is good coverage in skills, training and experience not only in workplaces that have union representatives, but in those where unions do not exist? If we are not confident that such coverage is near perfect, what can we do to make it so? We have already talked about the onus on employers to encourage such a climate. What more do we need to do to ensure that gaps do not exist?
I have raised this issue before in the past two or three years, during which time we have made great improvements. However, in closing I have a question for the Minister. What recent analysis has been made of funding gaps in the current system, particularly in universal coverage of legal aid? I also have some points for my hon. Friend the Member for Bradford, West, who introduced this Bill, to consider. One of my concerns is how the Bill would synthesise with existing legal and support structures on the ground. He has heard several Members express the worry that, at best, it would be a superstructure that duplicates existing practice, and that, at worst, it would damage existing provision by taking funds away or by skewing priorities on the ground. As I said earlier, diversity of provision is very healthy.
As several Members have also said, we must clarify the costs that the Bill would entail. Providing a blank cheque for legislation— any legislation—is an extreme worry, and although I would not want the question of funding to prevent a good Bill from making progress per se, it is incumbent on any Bill that its financial implications be as clear as possible. Have other ways of overseeing access to justice in discrimination cases been considered that are less "belt and braces"? What suggestions did the Equal Opportunities Commission and other such bodies make to my hon. Friend the Member for Bradford, West during his discussions with them? What did they have to say about developing the current system and dealing with its deficiencies?
Today's debate has shown that there is general consensus that the Government's current approach is right. However, concerns have been expressed about clarity of provision, and about the ability of people throughout the UK to access such provision. I hope that the Minister will discuss the integrity of the current system and the potential for improvements to it in her response. However, I am worried about rolling out new legislation that might destroy or damage the very elements that my hon. Friend the Member for Bradford, West is seeking to enhance.
I congratulate Mr. Singh on coming first in the ballot and thereby being able to introduce what is his second Bill on this subject, he having introduced the first, I believe, during the last Session. The Bill does raise important issues about the way in which employment tribunals operate in the sphere of discrimination law. I do not believe, however, that he has found the right solution. Setting up another quango and taking money from organisations that are already providing important services is not the way forward, but he has lit on an area in which difficulties exist.
In the early days of the industrial tribunal—I suppose that I should admit, as a lawyer, that I practised there for quite a few years—the atmosphere was very informal. It used to be described as the industrial jury, and there was an employer's representative and an employee's representative. Sometimes, just the employee and the boss would argue the case. At other times, the union representative or someone from HR—human relations, but we used to call it personnel in those days—would be involved. The environment was excellent and there was a real workplace feel about it. I can honestly say that it was not legalistic. The employer explained the reason why the person had been dismissed and argued that it was reasonable in the circumstances.
Discrimination cases are slightly different. Over the years, there has been a piecemeal accumulation of law on discrimination, leading to a large and complex body of law. I believe that it places a considerable burden on employers who have to try and understand the different matrices of discrimination within three different categories. From the employees' point of view, the protections are uneven, which is often poorly understood by employees themselves. I agree with Ms Johnson that people often require good advice in this sphere of the law.
Other problem areas include constructive dismissal, the Transfer of Undertakings (Protection of Employment) Regulations 1981, and so forth. Over the years, the atmosphere in the industrial tribunal—now the employment tribunal—has changed from being informal and constructive in how it operated to becoming more lawyerly, more formal and more legalistic. The rules have changed and become rather more restrictive, so it is time to look again into the whole subject of how this area of law operates. Indeed, the time has come for a review of discrimination law to see whether it can be made simpler. I would also welcome another look at how tribunals operate to see whether we could return to something more firmly rooted in what is happening in the workplace. I agree with the point made by Huw Irranca-Davies—that prevention is always better than cure. Providing decent grievance and disciplinary procedures that operate fairly in the workplace offers the best way forward.
I would make one point in defence of how employment law, rather than the courts generally, has operated, in that ACAS has always had an important role in dealing with cases, which allowed many settlements to be reached at an early stage. Lawyers practising in the employment field can justifiably feel that they were trailblazing to some extent.
In the really difficult cases of exceptional public concern where the highest issues of law apply, exceptional funding may be justified. However, for cutting-edge cases of discrimination, the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission are providing funding that is likely to make a difference in respect of clarifying, amplifying or extending the law. I do not believe that we have that much of a problem in getting the law right. The real problem is ensuring that someone worried about understanding the law has the opportunity to get the necessary advice in order to weigh up whether to proceed with a case.
The number of discrimination cases has increased, but levels of success at tribunals are pretty low—below 5 per cent.—and many cases are either withdrawn or dismissed. That may show either that many initial cases are of poor quality or, as the hon. Member for Bradford, West argued, that applicants feel unable to continue because they do not know how to navigate the system and need a lawyer. The community legal service provides a network throughout the country, but is currently under pressure. The legal aid practitioners group pointed out that its funding from the Government is being squeezed because the criminal legal aid budget is expanding rapidly and it has not been possible to ring-fence the civil side. That matter needs full review and we could talk about it for hours on end, but it is important for the Government to consider it carefully to ensure that that network of organisations that struggle for funding is not compromised by being squeezed in that way.
It is also important that the referral system, to which the hon. Member for Ogmore referred, is right. In the 1970s, I was a member of the committee of the Free Representation Unit, which the hon. Member for Kingston upon Hull, North mentioned. We received referrals from organisations, but the network was patchy. It is better now and the organisation has grown like Topsy; it has caseworkers as well as trainee lawyers and is doing very well. However, we need to ensure that there is a proper pipeline so that people who ask for advice from citizens advice bureaux, community law centres or somewhere else have access to the type of services provided by FRU, the Bar pro bono unit and the solicitors pro bono unit. We need to look at referrals.
Much has been said about trade unions. It is right to give credit to trade union representatives at tribunals. At the early stages, much sane advice is often given at the right time, but trade unions could do better. It has been said that a large number of people are never offered the opportunity to join a trade union. One or two Members blamed employers, which I thought was a bit rich, but trade unions could do much more to explain to potential members the services they offer and sell themselves a bit. In the mid-1990s, when I was a member of the Employment Select Committee, trade unions carried out a survey in docklands, asking employees whether they had ever been approached to join a union. It turned out that only about 13 per cent. had ever been asked. It was said at the time that unions spent on average 10 times more on their annual conferences than on membership.
As the hon. Gentleman pointed out, it is important that people have access to trade union membership and I certainly want them to join, as there are many benefits. People often appear in droves wanting to join a union after something happens—for example, if an employee has been sacked, has problems at work, has assaulted a colleague at work or something similar. I notice that Philip Davies has left the Chamber—perhaps he has gone to join a trade union. People need to have access to a trade union, and although good legislation is in place, in some cases employers are still putting pressure on employees not to join and certainly not to become active in the trade union.