HELP FOR AGGRIEVED PERSONS IN OBTAINING INFORMATION ETC (Hansard, 18 June 1975)

§ Mr. Ian Percival (Southport)
I beg to move Amendment No. 75, in page 40, line 19, leave out Clause 68.

Mr. Deputy Speaker
With this we may discuss the following amendments: No. 77, in page 40, line 29, at end insert: '(2) Subsection (1) above does not apply where a complaint is made under section 57'.

§ Mr. Percival
Clause 68 raises far more serious questions than may at first sight meet the eye. However, at this time of the morning I shall try to make the salient points as briefly as I can.
The clause provides for a form of amateur extra-judicial interrogation, the like of which does not exist in any other form of our law so far as I know. It is objectionable, and it is the view of the 1599 Opposition that it would set a wholly undesirable precedent. In Committee the Government sought to argue that the clause did not create a precedent by referring to other instances in which the citizen may be required to give information. I am not going into all the details; I merely submit that the instances that the Government referred to do not have sufficient similarity to what is being done in the clause to enable them to be quoted as precedents.
It was also said that no question of principle was involved. With respect, that was wrong. In view of the late hour I shall resist the temptation to develop those general considerations. They are important and it is only because of the hour that I do not take them up in detail. I put them forward as bald propositions rather than develop them with the argument that they deserve.
I shall make one or two points to demonstrate how undesirable it is that such a provision should be included in this or in any other piece of legislation.
1.15 a.m.
It is a common thing for somebody who believes he has cause for complaint against somebody to write a letter to that person asking certain questions. That letter may provoke the answer "Yes" or "No". It is common for that letter to be placed before the court or for the court to be shown that letter of inquiry and to be told that there was no answer. Then the court deals with that according to rules which have been hammered out over years of practice.
If the provisions of Clause 68 add to or alter those rules they are objectionable. If they do not add to or alter them they are unnecessary. Let me illustrate it by referring to Clause 68(2)(a), which says: the question and any reply by the respondent (whether in accordance with the rules or regulations under subsection (1)(b) or not) shall be admissible as evidence in the proceeding". Is this meant to make such questions and the answers if any answer is received, or the failure to answer them, admissible in evidence whether or not they would be admissible according to the ordinary and general laws of evidence? In other words, are they to be admissible even though they would not be admissible 1600 according to the existing and general rules of evidence? If the answer to the question is "Yes", the provisions are objectionable, and if the answer is "No", the provisions are totally unnecessary.
The same point can be made with equal force about subsection (2)(b). What does it mean? If it adds anything to the existing and general law, it is highly objectionable. If it does, it is wholly unnecessary.
There is one further point on which these provisions are objectionable. We must be careful in this House not to bring the court into matters which are not the court's concern, particularly to assist just one party. It may be right to give assistance to people who want to take advantage of the provisions of the Bill. If it is the desire to provide a questionnaire which may be used by people who may otherwise find difficulty in formulating their questions, let it be done by the Department or by the Equal Opportunities Commission, or by citizens advice bureaux, or by hon. Members in their surgeries. But let us not bring the court into a job that is not a matter for the court—and certainly do not bring the court in to assist the matter for just one party. If we look at the introductory words of the clause, we see that its purpose is to assist one party. By all means let us assist that party, but do so by other and more suitable means.
For this and other reasons the provisions are objectionable in the context of the Bill—and indeed would be objectionable as a precedent in any Bill at all. If this view is not accepted by the House, the other amendments grouped with this amendment will become material. The purpose of the amendment is to exclude from the operation of the clause, if it remains in the Bill, all questions arising on employment. The reason for that is very simply this. Clause 58 of the Bill provides that in employment cases a conciliation officer not only shall act where a complaint has been made but may also act before any formal complaint if requested to do so by either authority.
The need to which this clause is directed—albeit, as we think, so misguidedly—is thus already catered for in employment cases, and to provide a parallel procedure under Clause 68 would be unnecessary and could even prove vexatious in some cases.
1601 Conciliation officers have a great deal of experience and understanding of the often very sensitive problems in the area of industrial relations, and would undoubtedly be of considerably more assistance to both complainant and respondent than any facilities which might be provided to either under Clause 68.
Accordingly, we submit to the House that if this clause were to be retained it should be amended to that extent by excluding from its effect all questions arising in the field of employment, so that those questions may be dealt with by the other procedure provided under Clause 58, which appears to us to be far more suitable.
It is our firm belief that what is being done in this clause, if it remains in this Bill, is far more serious than may yet have struck most hon. Members. I recognise that it is late in the day to develop any of those matters here, but there is still plenty of time and opportunity for the situation to be put right. I hope I have said sufficient to lead the Government to give further thought to these matters, and that more time may be given to them, at a more civilised hour, in another place.

§ Mr. Leon Brittan (Cleveland and Whitby)
I should like to support most strongly what has been said by my hon. and learned Friend the Member for Southport (Mr. Percival). I did not have the privilege of serving on the Committee considering the Bill, and, therefore, did not have the benefit of participating in these debates, but in supporting what he has said I do so as a warm supporter both of the principle and of the detail of the Bill. I support what he has said because I would regard it is a very great pity that a Bill that makes a genuine social advance of this kind should be marred by a departure of the kind characterised by Clause 68.
I therefore very much hope that the Government will reconsider the clause before it is too late to do so. In my view, it is objectionable on a number of grounds. It is objectionable because, in the first place, it enables a party who believes he may have a case to set up that case by compelling a person, in effect, to incriminate himself. That is a 1602 dangerous precedent to set up. It is different from the procedure in our courts in other respects, in that in the courts at the moment, in the circumstances in which a person may be interrogated by another party, that is something that is supervised very closely by the court itself, and does not permit a roving commission to be applied by one party before he even has a case.
In the courts in an ordinary action, if a person wishes to administer interrogatories, as the phrase is, he has first to get the case off the ground. If he cannot do that, the whole question of interrogatories does not arise. Secondly, he has to persuade a court that the interrogatories he wishes to administer are necessary and proper for the administration of justice. Here he has to satisfy no one. He has to establish no prima facie case. He may, if he wishes, ask questions up hill and down dale in an onerous and oppressive way.
The only limitation on the provisions of Clause 68 is that the rules and regulations shall prescribe forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act or any other matter which is or may be relevant. There is no limitation on what can be asked. There is no screening process. It is merely a form which must be prescribed which will enable a claimant who may or many not have any real grievance to ask questions which the person to whom they are addressed declines to answer at his peril. Then, if he decides that it is unsafe not to answer them, his answers to those questions may be admitted as evidence.
I see no reason to believe that in this branch of the law, as it will become, there is a unique need for a procedure of his kind. I do not believe that a case has been made out for there being in this branch of the law so special a difficulty on the part of a complainant that a procedure as objectionable in principle and in practice as the one envisaged in the Bill has to be introduced. It seems to me that, when we propose a measure of social advance, it is a great pity that a legal provision should be introduced which smacks of the Star Chamber if it is not strictly necessary for the purpose for which it is intended, judged by the most stringent of criteria.
1603 Notwithstanding the lateness of the hour in terms of the passage of the Bill, I hope that the Government will reconsider the matter and drop these provisions from the Bill in its present form.

§ Mr. John Fraser
When I spoke in Committee on this matter, I put forward a number of arguments for this procedure which I do not propose to repeat now. The relevant copies of Hansard are available for those right hon. and hon. Members who wish to pursue the matter further. However, I want to introduce one or two new points.
First, the Government have been under criticism in earlier debates about the burden of proof. It was alleged that the burden of proof was already too much upon the woman complainant—the vulnerable person as against the large employer or large institution. We have had a debate about that. We said that as a Government we did not feel able to accede to the proposition that the burden of proof generally should be reversed. However, we have in Clause 68 at least a procedure which is likely to tilt the balance somewhat the other way—in favour of the complainant.
That is my first new point in favour of the procedure. We are enabling the woman complainant, who may perhaps be unrepresented, to get a little more help by being able either to write a letter or to use a prescribed form.
My second point is that, very often, when someone is treated unfavourably, there are matters peculiarly within the knowledge of the person who is discriminating. Many hon. Members will have been faced at their advice bureaux with the problem of the man who has been sacked and cannot discover the reason for his dismissal. The simple facility of sending a letter or a prescribed form to the employer asking for the reason would be of considerable assistance to the person concerned in knowing whether or not he had a case. I suggest that the simple procedure of being able to ask questions and get simple answers to them is likely to eliminate frivolous cases and not create them.
My third point concerns whether the answer to a question is admissible in evidence. The hon. and learned Member for Southport (Mr. Percival) suggested that, 1604 by virtue of paragraph (b), anything could be put into evidence. I do not think that that is so. All that is admissible in evidence is a question and a reply about the reasons for doing any relevant act. The question and the answer hinge on the relevant act. If the question is about a matter which is not a part of the relevant act, neither the question nor the answer would, in my view, be admissible evidence.

§ Mr. Brittan
How can the Minister say that, when the question which is allowed and permitted under Clause 68(1) (a) includes a question on any other matter which is or may be relevant"? Therefore it is possible for a question to be asked on a matter which may be relevant but which is not, in fact, relevant. That is exactly the sort of question which is admissible under Clause 68(2).

§ Mr. Fraser
I would have thought that those words were necessary. I think that we can trust the tribunal to make up its mind, when deciding what is admissible, to consider whether the matter is relevant.
The hon. and learned Member for Southport takes objection to the fact that the tribunal may draw some inferences from a failure by the respondent to reply within a reasonable period, or from an evasive or equivocal reply. There is nothing which compels the tribunal or court to draw an inference. It simply says that it may draw the inference.
I can imagine the sort of case when the situation is reversed and the woman is being cross-examined, let us say by the hon. and learned Member, acting on behalf of a large employer. She fails to reply, or her letter is evasive or equivocal. I can certainly imagine the hon. and learned Member hammering home to the tribunal the point that the tribunal may draw the appropriate inference from the fact that that woman had been evasive or equivocal or had failed to reply. That is what happens time and again when a lay person appears before a tribunal without representation.
We are trying to reverse the process, so that when a woman has delivered an 1605 inquiry to an employer who has not replied or has been evasive or equivocal she can invite the tribunal to draw the appropriate conclusions. That seems reasonable. I am sure that employers will be well advised and that their lawyers will be able to deal with any interminable and frivolous inquiries. I am sure that the tribunals will act sensibly. It may be an innovation but it is one which provides information in the early stages, before a case is brought, and it may well eliminate frivolous matters.

§ Mr. Percival
Can the Minister be a little clearer? Is he saying that subsection (2)(b) adds nothing and that the court is already entitled to draw an inference from a reply to an inquiry or from a failure to answer? That is a proposition I can understand. If he is saying that, why have the subsection? If it adds something and entitled the court to draw an inference which under existing and general law it could not, what are the extra rights given to the court and what is the justification for them?

§ Mr. Fraser
It adds something to existing law, otherwise it would not be there. It entitles the tribunal to draw the inference that people who fail to reply to the inquiry or who reply in an evasive or equivocal manner have committed an unlawful act.

§ Mr. Brittan
Is the Minister saying that without this provision the court could not draw such an inference if it thought it proper? It is only if he is saying that that the subsection can add anything new.

§ Mr. Fraser
I am not saying that the court could not draw the inference without the subsection. It simply emphasises the fact that the court can draw such an inference.

§ Mr. Brittan
Does it add anything?

§ Mr. Fraser
In my view, it adds to the position of the complainant in making it quite clear that the appropriate inference can be drawn. There is some advantage in that the complaint may have access to the Act and can read that the appropriate inference can be drawn.
The final objection to the new provision is that in the tribunal procedure we have conciliation officers, and they can sort these matters out. The answer to 1606 that is, first, that it is not the job of the conciliation officer to go round seeking information in this way. More important, the conciliation officer normally comes into the matter only after the complaint has been lodged at the tribunal. The purpose of this procedure is to enable somebody to write something similar to what is called in legal proceedings a letter before action. It provides a reasonable certainty of a reply, or the appropriate inference can be drawn. Then the complainant can see her Member of Parliament or trade union official, for example. She has an exchange of correspondence before a case is launched, and it is possible to judge from that whether it is reasonable to start a case. If there is an evasive reply, or no reply, that adds to the complainant's case. The court can draw the appropriate inference.
I think that the provision assists in getting information in the early stages. It is a little thing that we can do to redress the balance in favour of the complainant. Even if it is an innovation, I hope that it commends itself to the House.

§ Mr. Percival
Nobody denies the value of assisting people in the letter-before-action stage, but that could be done in many other ways, all of which seem equally suitable. It could be done by the Home Office, the Equal Opportunities Commission or the Citizens' Advice Bureau. There is nothing at issue except the way in which help should be given.
But the Minister did not deal with my question whether subsection (2)(a) makes admissible documents or facts which would not be admissible according to the existing ordinary and general law. If it does, what is the justification for making admissible something which, according to the ordinary laws and rules of evidence, would not be admissible? There may be occasions on which it is justifiable to do that, but I think that the whole House would agree that we should need to be satisfied that there were good reasons for going outside the ordinary laws and rules applying to everyone else in all other circumstances.
I hope that the Minister will apply his mind to the question whether it is intended by these provisions to make admissible something which would not otherwise be admissible. If it is, what 1607 is the justification? Perhaps he will be so good as to write to us about that.
Secondly, will the hon. Gentleman apply his mind again to subsection (2)(b)? I am trying to put these questions in as conciliatory a manner as possible, because they are not easy questions to answer off the cuff at any time of day, let alone at this hour. Does subsection (2)(b) entitle the court to draw any inferences that it would not be entitled to draw if these provisions were not included? I ask the hon. Gentleman to write to us saying whether it is intended to entitle the court to do something that it could not otherwise do. If the answer is "Yes", what is that something, and what is the justification?
If the Minister would be so good as to apply his mind to those questions a little further in the cooler light of day, we should appreciate it, but at present we are not entirely satisfied with the reply.

§ Mr. John Fraser
I think that I know the answers, but for the sake of brevity I think that the House would endorse any decision of mine to write to the hon. and learned Gentleman on these matters, and I undertake to do so.

§ Mr. Rees-Davies
Will the Minister also consider the phrase in subsection (1) to decide whether to institute proceedings which I believe to be a complete novelty in any law, international or otherwise? Will he seek advice in general from the legal advisers as to whether there is any kind of precedent for obtaining evidence in this manner before any action is brought in any proceedings whatsoever? I know of none now.

§ Mr. Fraser
No, Sir. I do not give that undertaking.

§ Miss Richardson
I beg to move Amendment No. 76, in page 40, line 21, after 'Act', insert 'or the Equal Pay Act 1970'.

Mr. Deputy Speaker
With this it will be convenient to discuss Amendment No. 85, in Schedule 1, page 51, line 2 at end insert— '(1B) The provisions of section 68 of the Sex Discrimination Act 1975 (Help for aggrieved persons in obtaining information etc.) shall apply in any claim made under this Act'. 1608 and Amendment No. 87, in Schedule 1, page 54, line 12, at end insert— '(1B) The provisions of section 68 of the Sex Discrimination Act 1975 (Help for aggrieved persons in obtaining information etc.) shall apply in any claim made under this Act'.

§ Miss Richardson
I shall be even briefer than the Minister was with his last reply. The purpose of the amendment is simply to inquire why the Equal Pay Act was not linked with the provisions of this clause. I do not see why it is not possible for those claiming under the Equal Pay Act to have the same facilities available to them as we are providing in this Bill.

§ Mr. John Fraser
Perhaps it is because we had not thought about it before my hon. Friend suggested it. However, there may well be some value in having this procedure in Equal Pay Act cases, because there are sometimes difficulties in knowing whether a pay structure exists or what is the pay of people with whom one is comparing the position.
I am not saying that I accept the amendment, but this is a valuable suggestion which I undertake to examine.

§ Miss Richardson
I beg to ask leave to withdraw the amendment.