My Lords, I had hoped that the noble Lord, Lord Lester, would have been with us today to move this Clause 58 stand part debate, which stands in both our names and those of the noble Lord,
Lord Low, and my noble friend Lady Turner. Unfortunately, the noble Lord has been struck down. He has been in touch with me and the Minister about the fact that he is unable to be here and I am sure that the Committee will wish him a speedy recovery.
Noble Lords may recall that at Second Reading the noble Lord, Lord Lester, spoke with passion about the importance of this clause and his commitment to making his Government change their mind. I expect that between now and the next stage of the Bill that is exactly what the noble Lord will be doing, supported by other noble Lords, including those on these Benches.
Clause 58 repeals the question and answer procedure. The impact assessment states:
“Section 138 of the Equality Act 2010 requires a Minister of the Crown to prescribe forms in order that a person who thinks that they may have been unlawfully discriminated against, harassed or victimised, can obtain information from the person (employer or service provider) they think has acted unlawfully against them”.
This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first discrimination and race relations Acts were passed nearly 40 years ago. Information obtained through this process is intended to help an individual understand why he or she was treated in a particular way and whether they have a legal basis for making or continuing a claim in court or a tribunal.
In the Government’s own Red Tape Challenge, not one concern was raised on the questionnaire procedure. When the Government then issued a specific consultation on questionnaires, that too provided little case for change. Around 80% of respondents opposed abolition of the questionnaire procedure. There is no evidence to support the Government’s claim that these questionnaires are used for fishing exercises.
Case law makes it clear that businesses and other respondents are not required to answer questions that are disproportionate and that a poor response should not lead automatically to a finding of discrimination. Instead, the question and answer procedure is widely regarded by employers and employees as valuable. There is anecdotal evidence that it helps individuals to access evidence at an early stage that can lead to an early clarification of the issues and, if the case proceeds to a tribunal, to greater efficiency in the tribunal proceedings. Indeed, judges and tribunal members regard this procedure as a useful way of establishing the facts and clarifying the issues in contention. The questionnaires have also been known to prompt a quick resolution either through an early settlement or by demonstrating that no discrimination took place, helping to prevent unnecessary proceedings.
The current question form guides claimants to set out their allegations of discrimination in a clear way. This allows the person responding to understand what is being alleged and to provide an explanation of what happened. The absence of a structured standard form may result in some claimants issuing proceedings where they would not otherwise, increasing costs to tribunals and businesses alike. Moreover, removing the standardised structure of these forms, which most businesses are already familiar with, may place some onerous demands on businesses dealing with discrimination claims. Indeed,
the Government’s own impact assessment fails to provide any empirical support for removing this “regulatory burden” on business.
Moreover, the financial assessment, which finds a net benefit of just £800,000 to businesses from implementing this measure fails to take into account both the non-monetary costs to the individual employees, who may be further marginalised by the retraction of their employment rights, and the additional cost to businesses and individuals of finding other means by which to obtain information in disputes.
The Discrimination Law Association, whose members comprise lawyers, advice workers and trade unionists supporting victims of discrimination said that,
“without the kind of information which individuals can only obtain through written questionnaires under Section 138, in many cases it will be almost impossible to prove discrimination”.
Indeed, without the questionnaires an individual who suspects they have been discriminated against will have to institute formal proceedings before they can seek disclosure of documents from the employer. From summer 2013, it will cost £250 to issue a discrimination claim and a further £950 for a hearing. Many victims of discrimination will never bother to seek justice and that will give unscrupulous employers a green light to discriminate at will, I would suggest.
The questionnaire procedure facilitates access to justice, helps both parties to assess where a claim lies and enables them to reach an early settlement where that is appropriate. Therefore, it is crucial that the Government should not repeal Section 138 of the Equality Act.
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