Clause 107

Equality Bill – in a Public Bill Committee am 9:30 am ar 25 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn


Question proposed, That the clause stand part of the Bill.

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss new clause 10—Representative actions—

‘(1) The Minister shall make regulations to permit the Equality and Human Rights Commission or a registered trade union to apply to a court or tribunal as appropriate for a representative action order in relation to a defined class of persons (“the class”) who would benefit from the litigation of rights, or common issues in relation to rights that members of the class may have as a result of the provisions of this Act.

(2) The regulations shall make rules in relation to the making and termination of a representative action order and its conduct.

(3) Such rules shall provide for hearings to be conducted in private when it is necessary for the issues between the members of the class and the Equality and Human Rights Commission or a registered trade union to be resolved and those issues are subject to legal professional privilege shared by members of the class.

(4) Such rules shall make provision for the hearing of any issue as defined in subsection (3) to be undertaken and managed by a different judge or tribunal from the judge and tribunal that have the responsibility for determining the rights or common issue in relation to rights, of the member class.’.

Photo of Sandra Osborne Sandra Osborne Llafur, Ayr, Carrick and Cumnock

This is an important issue relating to representative actions, on which we took considerable evidence from the Women’s National Commission, the TUC and others prior to our formal debates in Committee. It is disappointing that the Bill does not contain a provision for representative actions. I will try to be brief and stick to the point, because everyone is familiar with the arguments following the evidence that we took.

As we all know, pursuing an equal pay case at a tribunal is a long, complex and stressful process that rarely delivers equal pay for women. Much pay discrimination has been discussed in previous debates as systemic, and collectively it affects a group of women, yet the courts still have to hear each case individually rather than hearing a group of cases together. Each individual woman making her own claim can suffer emotional and financial costs. As a direct result of that,  many legitimate pay claims do not progress to the court stage. Furthermore, the tribunal process as a whole is unnecessarily protracted and financially burdensome to all parties.

Representative actions would ensure that individual women were less likely to be victimised. The process would be quicker and cheaper for all parties and would apply to all women affected, not just those who can take the case. It is no surprise that that is supported by the likes of the trade union Unison, which for many years worked on behalf of its members on equal pay and the single status agreements, which took at least five years to settle, although some cases are still not yet settled.

I can cite the case of some of my constituents, who are carers in the local authority. A large number of women settled their claim without recourse to the tribunal system and received—eventually, after a few years of negotiations—£5,000 in compensation. However, four women in my constituency decided that they would pursue the claim to the tribunal and are waiting yet for a settlement. They did not receive the £5,000 because they are pursuing the claim—the council would not pay the sum without prejudice to the outcome of the case.

To its credit, Glasgow city council did pay the sum, and women who are pursuing the claim there will, I hope, reach a conclusion within the next five years, if they are very lucky indeed. It is to the four women’s credit that they are determined not to take the £5,000, which is a great deal of money for a low-paid worker, but they should not have to do that in the first place. That is a powerful argument in favour of representative actions.

While recognising that the Civil Justice Council is carrying out work on representative actions and collective redress procedures, questions have been asked by citizens advice bureaux and others about whether the CJC’s proposals are sufficient for an effective collective redress regime in discrimination cases. Will the Minister confirm that the CJC is reviewing the technical aspects of that area of law, but is not specifically concentrating on equality law?

The TUC and others believe that the introduction of the concept for equal pay cases via the Bill is appropriate. I would be grateful if the Minister explained why she feels it necessary to await the outcome of the deliberations of the Ministry of Justice, rather than allow groups of employees to take actions in discrimination cases, whereby trade unions or the EHRC could bring a claim on behalf of identifiable groups of women.

Photo of David Drew David Drew Llafur, Stroud

I rise to support my hon. Friend’s case. The new clause is important and I hope that my hon. and learned Friend the Minister will look on it favourably. Many of our constituents face real discrimination on this route, and it is psychological more than anything else, which means that people show sheer guts in taking up an issue.

Many people are not that articulate or worldly wise about the system, so they have to rely on others to support them. We all have excellent examples from the advice agencies operating in our constituencies. In my case it is Citizens Advice, but there are other advice agencies that are also helpful. However, I want to make a plea on behalf of the trade unions.

I do not understand how anyone, certainly in a larger work force or a larger employment base, does not belong to a trade union. If nothing else, it is a form of self-preservation because of how trade unions can use their expertise and knowledge to provide collective redress in cases where people face individual problems. I often refer people—usually those who are not in a union—to trade union officers to pick up and use their expertise. They are the people who know about the real injustices in the workplace and the way that those injustices should be taken up. However, they can only be taken up, even though the case may only involve an individual, where a form of collective redress exists.

I hope that the new clause is looked at sympathetically by the Government. It is a plea to be more proactive in respect of references—clause 107 refers to references—to secure collective redress where injustices are seen to take place. That is more likely to lead to the individual in a difficult position feeling confident that their position is being properly defended. That is why I come back to the role of trade unions, which provide the best advice on injustices in the workplace. I hope that we can make some positive progress on the matter. If this is not the appropriate place to do so, perhaps on Report the Government will look to strengthen the clause and consider how new clause 10 could add to it.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 9:45, 25 Mehefin 2009

This is an extremely important clause, partly because the backlog has been so dramatic and only a tiny proportion of cases are resolved. It can take women years to get their cases heard or resolved. With a backlog of thousands of cases, clearing about 600 a year would be good going. I have not seen in the Bill or heard from the Minister that manifold extra resources will be given to fight women’s cases, or to provide for more tribunals or facilities so that the speed at which their cases are dealt with might be hastened dramatically. We need a dramatic step change. Such a change could be secured through representative action.

In June 2008, the Minister for Women and Equality clearly stated in the Government Equalities Office document, “Framework for a Fairer Future—The Equality Bill” that the Government would consider the case for representative action following the Civil Justice Council’s recommendation. In November 2008 in its final report to the Lord Chancellor, entitled “Improving Access to Justice through Collective Actions”, the council made the following recommendations:

“Recommendation 1 - A generic collective action should be introduced. Individual and discrete collective actions could also properly be introduced in the wider civil context i.e., before the CAT or the Employment Tribunal to complement the generic civil collective action.

Recommendation 2 - Collective claims should be capable of being brought by a wide range of representative parties: individual representative claimants or defendants, designated bodies, and ad hoc bodies.”

Those designated bodies could be the trade union, the EHRC or charities that represent people with disabilities. The Government have already had in-depth consultation, where representations were made that representative action should be introduced. They have had expert opinion clearly saying that representative action should be introduced. It would appear to the Liberal Democrats  that the Government’s plan to look at the matter again is a delaying tactic. We do not need more consultation. We do not need to ask experts what they think. We have already had their conclusions. I would like to hear from the Minister why the Government are not taking action in the Bill to introduce representative action. It is the most obvious legislative way of dealing with the operation of employment tribunals and their jurisdiction.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Perhaps the hon. Lady would tell me how that would work.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I could write to the hon. and learned Lady in more detail about how it would work. However, my understanding from trade unions I have met with is that, where appropriate, a representative group would consider the collective argument in a case as it applies to other individuals affected in the same way. It would then take the case, with those women, to the tribunal.

The case for representative action is strong and the reason is simple. The structure of discrimination law lends itself to representative action. The law protects someone from discrimination because of their protected characteristic, so if one person can demonstrate that they have been discriminated against because of that protected characteristic, and if others in the same company, or in similar employment, with the same protected characteristic, have, or are likely to have, been treated in the same way, a representative group such as a trade union council, the EHRC or a charity—charities are not mentioned in the new clause, but perhaps they could have been—could take representative action. Rather than requiring each individual to go through the long, complicated and difficult process of bringing a case to tribunal, we should let one person represent them all.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

May I unpick the hon. Lady’s line of argument? Is she arguing in favour of the new clause and representative action as a principle, is her argument driven largely by the delays and slowness of the existing tribunal system, or is she arguing both?

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

In a sense, both. It would be disingenuous to say that the backlogs have not focused the mind on this possible solution. However, the solution has merits in its own right. It would be ludicrous and resource intensive to have identical, or almost identical, employment cases involving discrimination against people with protected characteristics, and not to seek collective redress.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Has the hon. Lady applied her mind to what would happen in the case of a dispute between the claimant and the representative, or to what would happen to costs in the classic structure of an employment tribunal? Would they pass, or would they not pass? Those are important details. Perhaps she has some answers; it would be helpful if she did.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

If I had as many legal advisers as the Minister, I am sure that I would have a host of answers, but I am not so supplied. However, after this Committee, I shall seek those answers for her. I am sure that I can find them, but I do not have them to hand.

I think that the Minister knows that the argument is plain. My proposed system would be more efficient, would make it easier for individuals to access justice and would end the inequality that they suffer year on year. The greatest problem with equality legislation is not the legislation itself, which is often quite good, but people’s inability to get it applied in a fair and timely fashion. There is very little in the Bill that will address the extensive backlog of cases. That poses a huge obstacle. Representative action would be a dramatic step change and act as a greater deterrent to those who discriminate in employment and who can make cold-hearted calculations on the cost of their discrimination. If the employer knew that employees being discriminated against— especially if the discrimination is widespread—could take action fast with strong bodies to represent them in the fight against the employer, the latter might be deterred from discriminating in the first place.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Lady is conflating two points. She said that those who discriminate would be deterred, if they thought that the people against whom they were discriminating could take action fast. That is the point about the resourcing and efficiency of the tribunal system and the need for cases to progress through that system. The second point—the one that references the new clause—is about whether those being discriminated against could bring a collective case. Those are not the same things. Even if representative actions could be brought, the process used to take them through the tribunal system could still get hugely backed up. The advocates might be more effective, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud said, but progress through the system could still be slow. They are two separate things. It will be helpful if the Minister breaks those down when she responds to the debate.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Again, in a sense, I am arguing for both. Were there to be representative action, that, in itself, would contract the number of cases that had to go to the tribunal. It would also act as a deterrent to an employer to know that the case could be represented by the union or by the EHRC, which is a strong advocate. It would work on all those levels.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I would like to pick up on one point. The Solicitor-General has already asked how much the proposal has been thought through. Is it really the case that, if we allowed representative actions, we would reduce the number of cases? One argument is that—many members of the Committee, including the Minister, have said so—it would be difficult to bring a case, and there would be many barriers. If we allowed representative action—I am not necessarily arguing against it—would we not increase the number of cases? If so, we could make the system more difficult.

I ask about that only because I know—Committee Members will have to forgive me, because I am doing this only from memory—that the equal pay cases that have been brought, for example those related to local authorities, have involved a significant number of people. They have not exactly moved swiftly through the system. If we do not think about the processes in the tribunal system together with the provisions under the clause, we would be in danger of clogging up the system even further. We have to take the two things together, and I hope the Minister will do that when she responds.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman makes a good point. That is a call to arms both for resources and for the number of tribunals that are able to process cases, but I do not think it is an argument against representative action.

I do not want to detain the Committee any longer. New clause 10 is one of the most important proposals in the names of Government Members. With the best will in the world, with the Equal Pay Act 1970 and with tribunals, women are stuck in a queue so long they sometimes die before they get there. I think the Minister has to answer that question.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

I rise to support the new clause, which, as has been said, is probably the single most important new clause in the Bill. We have debated many clauses and amendments in the Bill that are matters of principle, and we are none the worse for it. We have debated many clauses and amendments, which, in the short run, would not have much effect. Suppose that we had more black or ethnic minority candidates, which I would want. We would be lucky to get more than two or three new MPs out of it, given where we are in the current electoral cycle. The point about the new clause is that it can transform lives, potentially thousands of lives.

I say with confidence that no member of this Committee has ever had the experience, which thousands of my constituents have, of being a woman bringing up a family on the salary from one or even two low-paid jobs. They would not know or understand what a grinding, oppressive life that is. We turn to those same families, the same female head of families, and say that they are not good enough parents, they do not know where their children are and they are not contributing to society, when we, as the Government, could do something to address their immediate economic plight.

The arguments on representative actions are unanswerable, and I wonder what the Solicitor-General has to say. They will help people who are the most vulnerable and the least able, as individuals, even with the support of their trade union, to go forward. They would address the issue of low-paid women, and indirectly help to bring thousands and thousands of children out of poverty.

We can lecture the poor about their lifestyles, about being good citizens and about parenting, but we can, in this Parliament, in this Committee and in the Bill, do something to address the economic standards and hardship of too many women in cities up and down the land.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 10:00, 25 Mehefin 2009

On reading the new clause closely, I realised that it would compel the Minister to make regulations to permit either the Equality and Human Rights Commission or a registered trade union to be the representative body. Does the hon. Member for Hackney, North and Stoke Newington think that those are the only two groups that should be allowed or should lawyers be allowed to do so, much as in the United States with class action? Should it be just those two bodies? I do not speak as a lawyer.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

I am not a lawyer either. I do not want to address the detail of the new clause; I am trying to address the underlying principles, about which I feel  strongly. The Solicitor-General asked a Committee member how it would work. In a sense, the Committee is trying to address the principle of representative actions. We are quite happy if the Solicitor-General wants to set out the practical problems.

The new clause, which is probably the single most important new clause to the Bill, should address the harsh reality of the people among whom I live and whom I try to represent, as well as that of some members of my family. My concern with representative actions is that the issue might already have been traded away because of how antagonistic any clause of this kind is to big business.

I would not like to think that before the Bill came into Committee unspoken agreements were made that the issue would not be touched because it is too difficult for big business. Big business is undoubtedly going through a difficult time, but ordinary low-paid women are going through an even harsher one. If we, at this phase of the Administration’s time in office, cannot address those women’s issues, they are entitled to ask in any coming general election whether we are really thinking of them and addressing their position. I support the new clause.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I shall be brief. I want to put the issue that I raised directly to the Minister. Obviously, we have been debating the principle, but we are also speaking specifically to the new clause and whether the Committee should include it in the Bill.

Subsection (1) would specifically compel the Minister to make regulations to permit only the EHRC or a registered trade union to take representative action. I want to probe on that point, although she will obviously reply on the clause specifically. If the EHRC and trade unions are to be allowed to represent a class, should lawyers be allowed also?

I ask because the provision opens up a change in our legal system that would probably generate widespread use of class actions, which do not tend to be brought in this country to the extent that they are in the US. Depending on the rules about funding such actions and whether they would be no win, no fee, the provision could drive a significant change—we could argue about whether that would be for good or ill.

We have seen what happened with the move to no win, no fee in personal injury cases, which made some significant changes. It has clearly had benefits for individual claimants, but one could argue that it has driven up the cost of insurance and caused cases to be brought, not necessarily for good reasons, that would not have been brought previously.

We could argue about that, but the provision would clearly drive significant change. When the hon. Member for Ayr, Carrick and Cumnock speaks to the new clause, she can say why she chose to make the EHRC and the trade unions the only two appropriate organisations, but I would like the Minister to comment on the Government’s views on the new clause and the possibility of allowing lawyers to bring class actions.

Also—I think the Minister referred to this—how would the new clause work on things such as costs? One issue in employment tribunals is that employers often are, or feel the need to be, legally represented while those who bring the cases are not compelled to be.  However, in a significant representative action representing a class of people, both sides would effectively be legally represented. That might be appropriate as a way to bring balance to the situation, but I suspect that it would drive up the costs of the actions significantly.

It might be possible to argue that in bringing a representative action on behalf of a significant number of people the cost per claim would be lower, although the costs would be driven up. However, there would be the issue that I raised in an intervention on the hon. Member for Hornsey and Wood Green—whether the number of claims would be driven up.

Those are quite complex issues because—the Solicitor-General alluded to this in her replies to the hon. Member for Hackney, North and Stoke Newington—there are dangers in not thinking through and testing how something would work in practice, and not ensuring that all the pieces fit together properly. If representative actions are brought, as the hon. Members for Ayr, Carrick and Cumnock and for Stroud would like, but no one has ensured that the rest of the system works, or thought through the costs or the workings of the tribunal process, there will be a danger of gumming up the works—to the detriment of everyone involved.

Photo of David Drew David Drew Llafur, Stroud

Does the hon. Gentleman accept that one reason many people can never seek redress is that there is no mechanism, other than belligerently pursuing their cause? All hon. Members will have encountered people who ended up in an employment tribunal representing themselves, not knowing at all about the system and losing their case simply because they were inadequately prepared and could not make proper representations. That is what the new clause is about; that is why I think it is a matter of justice. I do not believe that it would necessarily lead to a huge explosion in the number of new cases. It would just mean that people were properly represented and could seek the right redress.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman makes a good point—that may indeed be the case, but there is a need for thought and analysis of the likely effects. I know that to an extent they are unpredictable because the thought process involves trying to think through the different decisions that people could make. The question, I suppose, is whether there would be significantly more cases or whether the success rate would improve without the number being driven up significantly. To some extent, research and testing could be done on that, but it is obviously a judgment call. This needs to be thought through to establish what the impact would be.

To pick up the point that the hon. Member for Hackney, North and Stoke Newington made, fairly large companies have resources at their disposal and, even if they do not engage professional legal representation, they have skilled human resources professionals who are well versed in the relevant law, so there is some disparity in resources when an individual brings a case against a large company without representation and without the ability to fund it.

However, it is worth thinking about the impact of employment tribunals on smaller companies. The case has been made to me in my constituency that smaller companies—not those that have necessarily done anything  wrong—fear the use of employment tribunals as a weapon by disgruntled employees. Such employees effectively have nothing to lose, because they need not fund professional legal representation and do not get hit with costs, but the company might have to spend a significant amount on defending itself—either on hiring professional legal representation or in management time, which is a significant cost for a small company.

A large company can send an HR person off to deal with the tribunal, and perhaps that will not affect the business, but if a small company’s owner-manager, or another senior person, is taken away for a significant time, the power relationship is sometimes reversed. Often, people settle cases that they think do not have merit because the cost of pursuing them—

Photo of Sandra Osborne Sandra Osborne Llafur, Ayr, Carrick and Cumnock

The hon. Gentleman is making a valid case about small employers, but does not that happen now in individual cases anyway? What makes him think that a group of people would make things worse?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am simply responding to the quite proper point about power imbalance made by the hon. Members for Stroud and for Hackney, North and Stoke Newington. If we are to think the issue through, it is also worth thinking about the impact on smaller companies. The hon. Member for Ayr, Carrick and Cumnock is right: what I described happens now. I was making the point that the insurers of those companies often tell them to settle, regardless of the merit of the case, because the cost of defending it will be significant.

I am not sure—I was listening carefully to the hon. Member for Hornsey and Wood Green and she was not sure—what the effect of the measure would be. If it would drive up the number of cases, we need to think about those smaller companies that are concerned about the impact of employment tribunals. I am not saying that this involves all, or indeed most of, the cases, but cases are brought to tribunals that do not have merit and are being brought because the employee has little to lose. Cases are brought for reasons that perhaps are not as honourable as they might be.

That is not to disparage the very many valid cases, but we must consider the other side of the argument, particularly for those smaller companies for which what I have described is a serious concern. Cases have been brought to me in my constituency in which it is a concern. If we are thinking through a significant change—a number of hon. Members have said that it will be a significant change in the law—we need to think through all the consequences.

Photo of John Mason John Mason Scottish National Party, Glasgow East

It seems to me that the picture being painted by the hon. Gentleman is far too one-sided. We have heard from hon. Members across the board about the problems experienced by individual employees, who are often not well educated, do not know the law and so on. They are often up against very difficult employers, as I have seen myself. Yes, some employers might be in a difficult position, but surely there is a basic wrong that needs redress.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am not saying that there is not. I made the points I did to present a balanced argument. I acknowledged openly that if an individual brings a case in relation to a large, well resourced company, there  clearly is an imbalance in the resources available to the employee, if they are acting by themselves, and to the company. I was simply making the point that with smaller employers there is not necessarily a significant imbalance in resources.

Let us consider how employment tribunals work in terms of the cost position. Sometimes the relationship is altered because the individual does not have to pick up the cost. Because of the potential damage to the employer’s reputation and so on if they lost the tribunal—the potential award could damage their reputation—they might feel compelled to have legal representation. The other issue, which is more significant for smaller companies, is the management time required to deal with the case. Sometimes the power relationship is not in favour of the employer; it is the other way round.

I am presenting that case simply to give the Committee a balanced view, particularly for smaller employers. I was not saying that there is not an issue. Clearly, the issue that the hon. Members for Ayr, Carrick and Cumnock and for Stroud have highlighted is real. I am just saying that the Committee needs to think carefully about how we address it. We need to think through all the consequences.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

I am listening with interest to what the hon. Gentleman is saying, but it strikes me that it is slightly off the point. This is not a question of an individual employee vindictively taking a case against an employer. The essence of it is class actions. It is about a group of people and things that affect a group of people. The examples he is giving may be examples in other circumstances, but absolutely not in this one. There may be other problems with class actions, but what is being described is not one of them.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I obviously did not make myself clear. I mentioned the argument about cases being brought that perhaps do not have merit simply to make the point that for smaller companies the balance of power and resources between employer and employee is not necessarily completely out of line as it is—several hon. Members quite properly said this—in the case of an individual employee against a large company. That is the only point that I was seeking to make.

I illustrated that point with examples of cases that have been brought to me. I was not trying to say that with representative actions one would have a lot of people bringing cases without merit. The hon. Member for Islington, South and Finsbury is right that if a significant number of people were bringing a case, people would not bring meritless cases for personal reasons, because clearly there would be a representative group only if there was some shared cause. In fact, the number of meritless cases being brought might be reduced. I was simply saying that we must think of the costs on smaller companies, because the balance is not necessarily out of line.

I have made the points on what would happen about the number of cases and how the matter would be dealt with. The final point, which we have already alluded to, concerns the impact on the tribunal system. I think there is general agreement that the tribunal system is not working as well as it should. I do not know whether  that is a resourcing question or a process question about how the tribunals work and whether getting the system to work better using existing resources would allow us to process more cases.

We have to consider not only the clause, but how the system works. I hope the Minister will do that.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 10:15, 25 Mehefin 2009

My three colleagues make a powerful case for representative actions. If I may add to the broader argument levelled by my hon. Friend the Member for Hackney, North and Stoke Newington, the general view now seems to be that the single most important thing in further reducing child poverty is equal pay for women. She has hit an important nail on the head.

All three of my colleagues powerfully argued their case, which was not spoiled by the allegation from the hon. Member for Hornsey and Wood Green that, “It is easy to introduce these things. We can’t think why the Government don’t just up and legislate.” That attitude reflects the point made by my hon. Friend the Member for Islington, South and Finsbury, who noted how long the Liberal Democrats have been out of government and that they have no idea what steps have to be taken before sensible provisions that will meet this case can be brought into play. The analysis by the hon. Member for Forest of Dean pinpointed some of the things that the hon. Lady simply had not thought about.

There are a lot of problems with the proposals. Who would be a representative body? One possible way forward would be to allow a tribunal to certificate bodies as appropriate representatives, either for one case or as a generality. That might mean that the measure is too narrow in who it says could be representative.

The way we deal with costs is important. The hon. Member for Forest of Dean made the important point that if a representative can mobilise 2,000 people to bring an action against a business, the business might, if it is not sizeable, simply capitulate, with right or wrong never having been determined. That issue has to be balanced so that justice is not undermined.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

To pursue the Minister’s point about certificating potential new representative bodies, I was reminded that two consumer affairs bodies—Which? and Consumer Focus—are authorised to make super-complaints on behalf of generalised groups of consumers, rather than a group of named individuals. Is that the sort of thing that the Minister is talking about or is it too generalised and widely drawn? Would a group of named individuals need to be identified by whichever named representative organisation was certificated in the way she described?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The hon. Gentleman puts his finger on another problem that has to be resolved. Do we have an opt-in mechanism for the people who would be represented, so that the representative body had to get everybody’s case, everybody’s signature and everybody’s consent before it could go forward? Alternatively, should we have an opt-out mechanism, so that if the tribunal certificated, say, the commission to take a case in a particular work environment, every worker there would be deemed to have opted in unless they opted out?

Which? used provisions in relation to the high, inflated prices of replica football kit and won a significant victory, although it was not prepared to take any more cases because the process was incredibly complicated. That was not quite the system that we are looking at here, but there has been the ability to deal with things in that way. It is another way to deal with things that is not linked to employment.

We need to look at a range of issues—costs, who represents whom, whether people opt in or out, and how disputes are resolved between a claimant and a representative. I agree completely with my hon. Friends that, as discrimination and equal pay are systemic, it is onerous to expect an individual—they are often poor, pretty well by definition, and alone—who happens to have been wronged in the first place to have the fortitude and the backing to sustain an action that takes a long time. That seems inappropriate and not a sensible way to pursue systemic problems in this century.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The Solicitor-General said that the actions take a long time. Have the Government given any thought—the review was mentioned earlier—to whether it is possible to speed up these cases? Is that a resourcing issue or an issue of processes?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I can assure the hon. Gentleman that there is a lot of reflection on and consideration of how the tribunal system works. Obviously, over the past few years the relative trickle of cases has suddenly grown into a massive flood, pretty well overwhelming the resources that were reasonably predicted to be needed and resulting in the logjams with which we are all familiar. There is obviously a need to deal with those in some different way, but the proposal would be a sensible way forward if we could work out the technical problems.

Instead of having several hundred complainants pursuing one employer, one after another—even if they could be put together for some cases—a representative could decide the issue once and everybody’s damages could be worked out subsequently.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

I am listening very carefully to my hon. and learned Friend. I am glad that she understands where I am coming from on the new clause, but will she say more about the technical difficulties as she sees them?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

They are pretty well as I have said. The muddle that the Civil Justice Council is putting forward—a proposal for the whole of the civil courts and not specifically for any sector—relies on what happens in the courts outside the tribunal system—namely, the winner takes the costs. In such cases, the costs move, as it were, with the action, but tribunal costs are different.  A first glance at the CJC proposals shows that they would not fit the tribunal system at all, but it is not impossible to change things round to make them practical.

It seems to us that of all kinds of court case, discrimination and equal pay cases beg for a group action provision.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

What lessons can we learn from America? Presumably, the Americans have been having such actions for some time, so can we not learn from them?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

My hon. Friend really will frighten the horses if she talks about American class actions, because they are very much prey to the kind of hazard mentioned by the hon. Member for Forest of Dean. A person can be used as a hammer, sometimes unjustifiably, so we have to be more subtle and work to get things right.

We are looking at the CJC report. Despite what the hon. Member for Hornsey and Wood Green suggested, it reported only in November 2008. I must tell her—I do not know whether she has tried to read the report—that it makes “War and Peace” look like a magazine, and it is complicated. I have waded through it, being an anorak, and there are a lot of things that we need to tackle. However, the Government Equalities Office has also done a report on applicability to those specific kinds of case. We feel more positive about that report than about some aspects of the CJC report.

We said that we would consult on any proposals we make, so the hon. Lady will have to be a little more tolerant. She sees that as time wasting, but we see it as a sensible step before making what would be a significant change to the English legal system.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Minister for setting the case out so well. Can she update the Committee on a timeline? I recognise that such things have to be done with care because they would be significant changes, but can she tell the Committee broadly when those proposals might be available and over what period the Government are likely to consult?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not know why the hon. Gentleman had to spoil the end of my speech—I was just about to answer those questions. He knows I am teasing.

We will quite shortly be able to come to conclusions on whether and how we can go forward. We will consult if, as I hope, we say that we intend to go forward and if the consultation is positive. Again, a consultation has to be meaningful.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.