Equality Bill

I say straight away that Amendment 92 is defective and will therefore need to be reconsidered. It is defective because it deals with representative actions only in equal pay claims, whereas it ought to deal with representative actions in all discrimination claims, and certainly those involving sex discrimination as well as equal pay. The amendment is also unnecessary in the sense that the tribunal legislation already gives the Government the power to bring in representative proceedings. The Government so far, no doubt because the business Ministers representing employers have decided to oppose this, will not exercise that power. I shall try to think of some ways before Report to make them do so, and I hope that the Official Opposition will join in that. I want to try to explain why this is such an important issue and, in doing so, I hope that the noble Baroness, Lady Turner, will allow me to go down memory lane to give just one example. About 25 years ago, I had the privilege of representing MSF in the speech therapists or Enderby case. The noble Baroness, Lady Turner, will remember it very well because she was there from the beginning and it was her trade union. That case took 11 years—I say it again, 11 years—from start to finish. We had to go to the divisional court, the Court of Appeal and Luxembourg, come back from Luxembourg and then there were further proceedings. The case involved comparing the work and pay of speech therapists, hospital pharmacists and clinical psychologists within the National Health Service. The Government, in the public sector, used every trick in the book and fought tooth and nail to avoid giving those speech therapists, 99 per cent of whom were women, equal pay with their counterparts. Each of those women had to fill in a separate originating application, a separate claim form, because there was no procedure in the employment tribunals to allow them to join together, not in an American-style class action, but simply in English-style representative proceedings so that several hundred claimants could be joined together. Because there were hundreds of separate pieces of paper, as is now required, the consequence was that, by the end, women had moved or died and their male comparators had died or moved. The union had probably lost many of the papers. There was a great law firm, and the whole thing was chaos. Who is helped by chaos? Bad employers are helped by chaos. If the CBI, a body which I have respected very much throughout my years when dealing with discrimination, and major employers, went to the noble Lord, Lord Mandelson, and his colleagues and said that they now accept that there should be orderly, coherent procedures in the employment tribunals for dealing with equal pay, sex discrimination and other discrimination cases, and therefore liberated the Government from any pressures and enabled them to use their existing power, it would be a modest change in procedure that would mean that the collective implications of systemic wrongdoing could be addressed in a single process in an orderly way by a single employment tribunal and upwards. My amendment is unnecessary and too narrow. It is very modest, because it states: ""The Secretary of State must make regulations to allow the Equality and Human Rights Commission or a registered trade union"—" nobody else— ""to apply to a court or tribunal … for a representative action order in relation to a defined class of persons … who would benefit"." It goes on to explain how that might be done. One bad argument I heard from within the Administration—I think it came from the Ministry of Justice—was that all this is very sensible, but we have to wait for the civil justice review to change the system for all proceedings. That is one of the arguments that FM Cornford dealt with in his classic book Microcosmographia Academica: Being a Guide for the Young Academic Politician as a recipe for doing nothing at all. We do not need to wait to reform the entire civil justice system when we are dealing with discrimination law and a specific jurisdiction. All I therefore beg for is that the Government will exercise their power now—there is no need for consultation, as this is not controversial—to allow the commission and registered trades unions to apply in this way so that we can have orderly proceedings. It is not radical. It is not even liberal. It is just sensible. I beg to move.