Equality Bill [HL]

My Lords, I am very grateful to the noble Baroness for giving her time last week to discuss these issues. I sought to reassure her and I intend that the noble Baroness goes away with something. We do not expect the commission to pick on organisations or to deal with them inappropriately. I am determined—as I am sure are colleagues across government—that the way in which we set up the commission will ensure that it is very clear about its work and focus. The noble Baroness is absolutely right to consider that that is all well and good but to ask what would happen if the situation which she mentioned occurred and to ask what safeguards would be in place. I sympathise with the noble Baroness’s concern that small organisations, whether charities, religious charities or small businesses, fear being treated inappropriately and oppressively by the commission. However, as I said, we need not fear that happening. The Federation of Small Businesses warmly welcomes the commission, as have many other organisations, including faith bodies and charities. However, I shall explain some of the processes involved and I hope that will enable the noble Baroness to feel more comfortable about the measure. I asked officials to scale up what is spent by the commissions at present on supporting legal cases in employment tribunals, which is where the bulk of these issues are dealt with. The relevant figure is about 4.5 per cent, which is not huge given that supporting legal cases in employment tribunals is a core, fundamental part of the commissions’ work. I believe that it is about right. In a budget of £70 million—if the officials have done their arithmetic correctly, which I am sure they have—the relevant figure is just over £3 million. About 250 significant cases are supported by the three commissions every year. I believe that figure will apply also to the new commission. Therefore, we are not talking about huge resources or huge numbers of cases. However, part of the fundamental purpose of the commission is to support cases as it will tackle discrimination where it arises. The first safeguard is that the commission’s job is to be sensitive to its stakeholders. If it fails to do that, it will lose authority and support. Sensitivity to stakeholders includes the fact that the commission needs to think very carefully about how it uses its resources. We have not set out in the budget particular sums that need to be spent on X or Y in view of the concept of independence that we discussed previously. However, it is very important that those involved in the commission, and those, including Parliament, who set it up, feel confident that it is using its resources efficiently and well. That is an important safeguard. As noble Lords will know from the Bill, the commission will need to consult on its strategic plan, including its legal and regulatory strategy. That is also an important safeguard. However, I recognise that a small organisation could find itself defending an action brought by the commission. However, the checks and balances in the system ensure that a body in that situation is not disadvantaged. As the noble Baroness and I discussed—I know that the noble Baroness accepts this—most of these discrimination proceedings are brought in employment tribunals. Over the years employment tribunals’ processes have increasingly been designed to ensure that the procedures which are used are very straightforward. We make formal representation unnecessary. In addition, in both the courts and tribunals clerks or judges or tribunal members themselves would seek to assist a person who was unrepresented with matters of procedure. If a case brought before the court or tribunal is vexatious, or does not disclose a cause of action, procedures exist that would allow the case to be terminated. Procedures are now in place in employment tribunals to sift out claims that cannot be substantiated. That, again, is an important safeguard. A tribunal application will be accepted only if the aggrieved party has been through the statutory grievance procedure with the employer, as required by recent reform to employment legislation, maximising the opportunity to have a non-judicial outcome. Similarly, there are also procedures that allow a successful respondent in court to claim the costs of their defence. The bulk of these cases are dealt with in the employment tribunal, with straightforward procedures, no need for representation, and a sifting process to ensure that these are real cases and real claims and that vexatious claims are dismissed. Where a case might go to court, it is possible to claim the cost of the defence, which is important. I also outlined on Report the safeguards built in when the commission exercises its other regulatory powers; for example, to compel evidence in the course of an investigation. In looking at devising these powers, we thought carefully about the need to ensure that there is a fair process for those who are subject to enforcement action. We believe that we have achieved a reasonable balance. The commission will be a public body and will be subject to review in the courts if it seeks to act unreasonably or unlawfully by the nature of it being a public body. As the noble Baroness is aware, legal aid will be available to any individual facing proceedings in the county court, subject to the statutory means and merits tests. The noble Baroness, Lady O’Cathain, referred to the case of Steel and Morris v the United Kingdom. In that case—I refer to it because of the question the noble Baroness specifically asked me—the European Court of Human Rights ruled that the inability of the applicant to get legal aid had breached their right to a fair trial under Article 6. The court highlighted the exceptional nature of that case: at 313 days the longest in English legal history, 40,000 pages of evidence, 130 witnesses giving oral evidence, and a 762 page substantive judgment. In this ““exceptionally demanding”” case—as the court described it—a fair trial was not possible if one side lacked the resources to be represented or to cover the costs of mounting a defence. That is why, in the Access to Justice Act 1999, the Government made exceptional funding available in cases which would normally be excluded from public funding. A grant would be made by Ministers if it was recommended by the Legal Services Commission and if the case has a significant wider public interest or an overwhelming importance to the client, or if it would be practically impossible for the client to defend the proceedings. The Steel and Morris decision was made in an exceptionally demanding case with an extreme disparity of resources, and we believe that the exceptional funding scheme remedies the deficiency in the legal aid regime that brought that about. I have thought carefully about the proposal for a new fund that would provide legal assistance for an individual, a charity, or religious or belief organisation, subject to the commission’s powers. But as I said on Report and as I have said to the noble Baroness, there are difficulties about the proposal, not least—and I make no bones about it—because of the pressures on legal aid funding, the need to control that and the other good causes that would, in a sense, come forward. It would have to be an establishment of a fund at the expense of other priorities. I hope that all the safeguards I have now outlined will give the noble Baroness some comfort. I refer to the way the commission will be set up, the way that it is meant to deal with these issues, the approach it must take to its stakeholders, the way in which we would expect it to deal with its regulatory powers and the way in which the courts and tribunals now operate. I see very little danger, but if there were a danger I have already outlined what could happen. I say categorically that it is not our intention that the commission will be able to use any of its powers to pick on individuals, charities, religious or belief organisations or small firms. On that basis I hope that the noble Baroness will feel able to withdraw her amendment.