My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.
Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.
Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited
scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”
At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.
My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.
When we debated this in Committee, some noble Lords doubted my contention that,
“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]
Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on
occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.
Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—
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