§ 7.55 p.m.
§ Baroness Seear rose to move, That a humble Address be presented to Her Majesty praying that the regulations be annulled.
§ The noble Baroness said: My Lords, in moving the Prayer that these regulations should be annulled, I wish to assure your Lordships' House, especially at 726 this late hour, that I do it in no desire to extend what your Lordships no doubt feel is the already overlong discussion about these regulations. I do it because I am genuinely confused about the interpretation of these regulations, and I am conceited enough to think that if I am unable to understand them there will be some other people who may have to use these regulations, both as members of tribunals and as applicants going before tribunals, and who will be as confused as I am myself.
§ Though I imagine that it is only people who have been through this argument before who are here tonight, I would remind your Lordships very briefly what all this is about. The equal pay for equal value regulations require that there should be an independent expert to inquire into any case regarding a claim that work is work of equal value as between a man and a woman in an undertaking. The argument has been about to what extent the report of that independent expert can be cross-examined in front of the tribunal.
§ I would remind your Lordships that there are two aspects of this issue, both of great importance, though of a very different order. The first, and, of course, the most important, is the whole legal principle of the right to cross-examine an individual expert in the judicial process and, along with this, the fact that the European directive requires that there should be a judicial process which will be applied to the determination of cases of equal pay for work of equal value. So the question is whether the examination of the independent witness provides what is required in terms of the judicial process, and the importance that the judicial process in this regard should be maintained.
§ As I understand it, there is no other place in British law in which there has been any question but that an independent expert should be cross-examined in front of the judicial authority, whatever that authority may be. That is the big general point. The other point is specific to the question of the determination of equal pay for work of equal value. I would argue that it is particularly important in this regard that there should be full examination of what the independent expert has said in front of the tribunal, because questions of value are inevitably, at the end of the day, to a considerable extent, questions of opinion. To maintain that you have absolute facts in regard to the nature of one man's job and one woman's job is to be very optimistic indeed. We all know that different independent experts, with the best will in the world and with complete integrity, may well come up with different decisions about the nature of that work. It is therefore inherent in the very nature of this issue that, even more than in many other cases, it should be possible to have that independent expert's report fully examined and cross-examined.
My confusion arises from the fact that I genuinely do not understand to what extent, as this regulation now stands, full examination of the expert's report can in fact take place. In the debate in your Lordships' House on 5th December 1983, at col. 926 the noble Earl, Lord Gowrie, said:
I hope that from that it will be apparent that the expert can be challenged and that his report is simply evidence on the question of the value of the jobs at issue. It is for the tribunals to decide what weight to attach to all the evidence, and ultimately to decide the issue".
Many of us thought—I am sure that the noble Earl, Lord Gowrie, at the time thought—that this was the end of the matter: that now that it was possible fully to cross-examine the expert the general legal objection, that there was an inadequate opportunity to examine the expert, had been overcome and that there would be plenty of opportunity to discuss whether in fact the expert's evidence was valid and his conclusions correct. But Rule 8(3)(2C) provides that:
no party to a case involving an equal value claim may give evidence upon, or question any witness upon, any matter of fact upon which a conclusion in the report of the expert is based".
How can you at one and the same time comply with Rule 8(3)(2C), which says that you may not question any witness upon any matter of fact upon which a conclusion in the report of the expert is based, and also claim that his report is evidence on the question of the value of the jobs at issue, et cetera?
There are two exceptions to Rule 8(3)(2C). One is Rule 7A(9), but of Rule 7A(9) the Joint Committee on Statutory Instruments has said:
In the committee's view, the status afforded to the expert's report is not made clear by the procedure regulations which should have provided further elucidation on this crucial matter".
§ Therefore the Joint committee, like myself, is in doubt as to what really is implied.
§ There is the other exception—paragraph (2B) of Rule 8. Paragraph (2B) allows cross-examination in regard to the defence of the genuine material factor, which is an important but only one argument that can be advanced, and also if the expert has not arrived at a conclusion. But that leaves out the absolutely crucial consideration of what will presumably be the normal kind of report in which the expert produces his facts, argues from the facts to a given conclusion and presents it to the tribunal. It is that situation which we want to have the opportunity to cross-examine. I would repeat, as I said a few moments ago, that this is not only because it seems to us to be right in terms of due judicial process but because of the ambiguities which inevitably arise in cases of this kind, these so-called facts.
§ Let me take a case where it is said that a woman's job and a man's job are substantially different because they include a lifting operation which the woman undertakes only once in the course of a four-hour shift but which the man undertakes 25 times in the course of a four-hour shift. However, it is perfectly possible that there may be differences of opinion about the number of times that it happens. The expert witness may have examined the case on a rather unusual occasion. It may be that evidence could be called to show that on a great many occasions the woman carried out the lifting operation no fewer than 14 times in the course of an hour. This would subtantially alter the decision which would be arrived at. This is the kind of evidence that one might wish to call from somebody who was familiar with the job and who would disagree with the so-called facts which in all good faith the expert witness might have produced. One cannot be satisfied, therefore, with the regulations as they stand at the moment, both in terms of what they appear to mean and also because it is very difficult to understand what in reality they do mean. It is for this reason that 728 reluctantly I am moving this Prayer that these regulations should be annulled.
§ I very much hope that the noble Earl, Lord Gowrie, will be able to clear up this uncertainty. I do not wish to have to pursue the matter any further. I am sure that we all want it to be settled. But surely, above all, a regulation must be clear. Nobody can possibly say that this regulation as it stands is clear. I beg to move.
§ Moved, That a humble Address be presented to Her Majesty praying that the regulations be annulled.—(Baroness Seear.)
§ 8.7 p.m.
§ Lord McCarthy
My Lords, it is always pleasant to be able to agree with the noble Baroness, especially at this time of night. We on this side of the House find ourselves in total agreement with what she has said. The noble Baroness stated that the heart of the objections raised by the joint committee go to the role of the expert. This was not the issue which was debated when this general question of the statutory instrument was considered by the House on a previous occasion. At that time most of the debate centred on other defects, in particular on defects in the regulations. The Government had made last minute changes to the procedural rules. I say this now, because if I do not it is conceivable that the noble Earl may say it. I said on 5th December 1983, at col. 887 of Hansard:It is now clear that the expert can be cross-examined. It is now clear that the expert can be challenged by at least one expert witness. I readily admit that, in broad terms, those parts of the procedures now comply with at least Article 2 of the EEC directive and represent a fair judicial process".As the noble Baroness has said, that is what we generally believed at the time this matter was debated. However, on further reflection, and in particular after having looked at the very cogent and persuasive report of the Joint Committee on Statutory Instruments—not a body which normally takes a line of this kind—we are bound to wonder whether in fact we were right. Therefore, the noble Baroness comes before the House to pray for the order to be annulled so that we may have some kind of explanation.
If I understand correctly the reply which the Department of Employment makes to the criticisms which are advanced by the joint committee—and if I do not understand it correctly I am sure that the noble Earl will correct me—it runs something like this: that what we have to appreciate is that running through all this is a kind of two-stage process. First, there is the question of how one determines the admissibility of the report. Secondly, there is the question of how one determines, having accepted the admissibility of the report, the justifiability of what the report actually says. The joint committee has got itself somewhat confused, because the rather restricted rights of access, cross-examination and the use of various techniques in trying to find out the justifiability of what is happening are limited to the question of determining admissibility.
When one is talking about admissibility, of course, it is a question of whether the expert has misdirected himself or whether he is being unreasonable, not whether he could be more reasonable if he tried. Once 729 the tribunal accepts the admissibility, say the Department of Employment, if I understand their argument, then, of course, all is open. At that stage all reasonable questions can be raised and cross-examination of the experts can take place.
As the noble Baroness, Lady Seear, says, we are left with a number of doubts. First of all, we have doubts about the limiting consequences of Rule 8 (2C) and (2D), and how far this allows the parties to the process to cross-examine the experts, to introduce new facts of their own and to put themselves in a position where they can provide a kind of independent evaluation of what the expert says. We now have very severe doubts about that, but that will probably be developed by other speakers in this debate.
Secondly, having looked at the thing all over again and taken into account some of the criticisms which were made during the course of the debate, we have to wonder whether or not this curious spatchcock of a procedure—which has been made worse, I suggest, because the Government advisedly (and I admire them for this) tried to put in at the last minute something about cross-examination in order to make the procedure more acceptable to the House—is almost impossible to understand. This is a separate point. That, after all, is one of the points made by the joint committee.
What they propose at the end of the 13th Report, having made their criticism and having listened to the reply of the Department of Employment, is further elucidation of the status of the expert's report and the identification of the individual provisions in the explanatory note. I do not see how the Government can deny that. If they say it is clear, let them make it clear. These seem to me to be very modest requests. Surely the Minister could tell us tonight whether there will be, in fact, further elucidation of the status of the expert's report, and an identification of the individual provisions in the explanatory note.
The fact is that we now have an astonishing set of complicated different legal rules which ordinary people have to understand. First of all, we have a set of rules of procedures numbered 4 to 11 which are the original procedures which tribunals are supposed to follow, and then we have another set of amendments numbered 1 to 5 which amend those original procedures; but we have no consolidation. We do not have available to us on one piece of paper what the results of making those amendments are on the rules of procedure. Such rules and amendments to those rules that appear are further sub-divided into numbered paragraphs and lettered sub-paragraphs with and without brackets. As I say, this whole thing has never been consolidated into one piece of paper. Surely this is what further elucidation should mean.
The noble Earl said at column 883 of the Official Report of 5th December last—and this, I think, is one of the things which the House disagreed with him about, and is one of the reasons for the vote:We acknowledge this complexity, but we argue that it is, unfortunately, unavoidable.I think that is our basic difference. We believe that it is complex, but such complexity cannot be completely unavoidable.
730 The noble Earl also said, at column 924 on 5th December (and I asked him a question about this):We are also working on what I would call a child's guide to these regulations.One of my questions to him tonight would be: what has happened to the child's guide? Maybe it has been published and I have not noticed it. He went on to say:In preparing its revised guide and leaflet for employers and employees, the Department of Employment will have very much in mind the need to make clear and simple the admittedly complex provisions of the amended regulations.I suggest he would not wish (for all the reasons which the noble Baroness has put forward) to come to this House and say that in the light of the quite modest proposals of the report of the joint committee we can realy say that this is now clear.
I would say in conclusion that on these two central points we ought to expect a useful and helpful reply from the Government: first, the extent to which the expert can be cross-examined and the extent to which, as a result of that cross-examination, new facts and new evidence can be introduced; and, secondly, on the question of the complexity of the regulations as they stand, whether the Government can give some relatively simple explanation and some consolidation of all these provisions.
§ Lord Denning
My Lords, when we discussed this on a previous occasion I complained of the tortuosity and the obscurity of the regulations then under consideration. When I now read these regulations as to procedure I complain even more strongly of their tortuosity and their obscurity.
Let me remind your Lordships of the simple point with which we are dealing. Article 119 of the treaty prescribed equal pay for the same work, and the decision of that question was entrusted by our own legislation to an industrial tribunal. The directive cleared up an ambiguity there: equal pay for equal work also covers equal pay for work to which equal value is attributed. You might say, "equal pay for work to which equal value is attributed by the tribunal". That is the essential thing under this new directive. Our legislation must be such as to give equal pay for work to which equal value is attributed by the tribunal. That is where all this new system goes wrong.
As the report of the joint committee says, if you examine these regulations you see that it is not the tribunal which is deciding it; it is the expert to whom it is bound to be referred. That is how the regulations put it. "The expert", my Lords. I ask myself: who is he? He is apparently to be appointed by ACAS. What do they know of who is an expert? In what is he an expert? In the Law Courts, when I asked for an expert, I wanted to see, if he was an engineer, what his qualifications were; if he was an architect, what his qualifications were; if he was a lawyer, what his qualifications were. There are no qualifications that I know for a job evaluation expert. There is no course in any university, as I know, for the evaluation of jobs. I would suggest that this so-called "expert" is simply a third person appointed by ACAS.
How much better it would be for the person or persons who decide the case to be the legal chairman with the employers' side and the employees' side represented, as they are on the tribunal. In other 731 words, the tribunal is the right and proper body to decide equal pay for work to which equal value is attributed. The tribunal is the right body, not an expert. That was the point of the joint committee.
As I read the regulations—and it is a very complicated business—these are the steps which a woman has to go through in order to make her claim for equal pay for work of equal value. First—and she receives no legal aid—she has to go to a specialist lawyer. No ordinary lawyer knows anything about it and no ordinary judge knows; I can tell your Lordships that. The woman has first to go to a specialist lawyer who is engaged in specialised industrial law. The employers, for their part, have to go to a specialist lawyer who specialises in industrial law. Those two sides then come up against each other.
But what do the regulations say? The two sides cannot go straight to the tribunal and ask the tribunal to hear any evidence, and so on. By law, the matter is compelled to be referred to an expert; I call him a so-called expert. The matter must be referred to him, and the two sides have to argue the case out before him. The representations and hearings must be dealt with entirely by that so-called expert. Look at all the expense of doing that, and the cost.
The expert then makes his report. In the ordinary way, in a court of law, the expert does not give his own conclusions; he simply states his findings and leaves it to the court to come to its conclusions. But under these regulations it is the expert who must state his conclusions. If his report is reasonable and satisfactory, the tribunal does not reject it. It is only if it is unreasonable and unsatisfactory that the tribunal can reject it. What happens then?
It is not the tribunal itself which can reject the report; the matter has to go to yet another expert. If the tribunal rejects the report of the expert because it is unsatisfactory or because it is unreasonable, the regulations expressly say that the tribunal cannot decide the matter for itself but must refer it to another expert. That is the first snag.
Eventually, the expert makes his report. All that having been done, whichever of the parties loses or is the party which the report is against goes to the tribunal. The tribunal has the report before it to consider. It can have lawyers before it, too. The tribunal can hear the witnesses on each side and the experts. They can all be cross-examined all over again. Just think of the cost. Here is the snag. It was said, "If we can cross-examine the expert, that puts everything right". It does not.
There is the very important provision to which the noble Baroness referred; Rule 8(2C) states:no party to a case involving an equal value claim may give evidence upon, or question any witness upon, any matter of fact upon which a conclusion in the report of the expert is based".So you cannot go into the matter and cross-examine the expert or the witnesses on matters of fact which the independent so-called expert has put in his report. That destroys the whole value of the cross-examination. You cannot cross-examine as to matters of fact but have to accept what the expert says. Does that not make him the decider? Most cases depend on questions of fact. It is often a nice question but still it 732 is a question of fact or a question of law. Most cases depend on decisions or on the determination of matters of fact, and that is the very matter which Rule 8(2C) says you cannot cross-examine the expert or any witness about.
I agree with the joint committee. If you read the regulations right through, you will see that the decision is taken out of the hands of the tribunal and put into the hands of an expert. I suggest—and I agree with the joint committee on this—that that is not good law. It is for the tribunal to decide the matter and it is wrong and invalid for the tribunal, or for any of our legislation, to pass the decision over and leave it to an expert.
In a court of law, one cannot ask a witness to answer the question, "Do you think he was negligent or not"? That is the very question the court has to decide. You cannot and should not ask the expert the very question the tribunal has to decide. Yet under the expert's report, his conclusion is made virtually unassailable unless the report is found to be unreasonable or unsatisfactory. In those circumstances, the tribunal may reject it, but still the matter has to go to another expert.
I have demonstrated the expense, cost and trouble involved in those procedures for the lady who is not legally aided and who has to deal with this matter under her own steam or get some association to help her before she even gets to the decision of the industrial tribunal, to which, by statute and by treaty, the decision is assigned. That is the real vice in all these provisions.
It will not stop there, of course. There will be an appeal to the employment appeal tribunal and then to the Court of Appeal. If I am right in what I think about all this, it may even go to the European Court in Luxembourg. That is why it seems to me that these regulations should be annulled. I agree entirely with the joint committee. The procedure leaves the decision not to the tribunal but to the expert.
Just think what that means, not only in terms of cost and the like but also in being entirely different from the other angle. When the tribunal has to decide the question of equal pay for like work or equal pay for work that is broadly similar, why should the tribunal not decide the question by itself, on proper evidence? The chairman can control matters. He can ask for an independent expert to report if he wants that to be done. He can control everything. There is no need to interpose an expert with all the great expense, delay and cost that that involves.
I would ask not only for that procedure to be annulled but that we go back to the same, simple procedure we have in the rest of these claims for equal pay for equal work. I support entirely what the joint committee said. The key matter under the present discussion is that you cannot cross-examine the expert or the witnesses, or deal with them, on any matter of fact on which the expert has stated his conclusions. That means, virtually, that one cannot quarrel with him.
This is an important matter. I understand that by convention we cannot divide the House and ask that this Motion be agreed to and for these regulations to be annulled. But I would say that I do not agree with one 733 word of the answer given by the Secretary of State's department to the joint committee. Let the Secretary of State take this matter back again. I would like him to throw out the whole thing and go back to the simple procedure before the tribunal. If not, I can assure your Lordships that lawyers hereafter will have a grand time before the expert and before the tribunal, and then before the employment appeal tribunal and right to the top—arguing that these regulations are invalid. Rather than have that long delay and expense, I would ask that these regulations in effect be withdrawn and replaced by the present ordinary procedure without any of this business of experts at all. I would support the Motion.
§ 8.30 p.m.
§ Baroness Lockwood
My Lords, in the debate on 5th December last year, I think we were all agreed that we were dealing with a very complex subject. Some felt, regrettably, that the regulations themselves made the subject even more complex. I think what we have heard tonight underlines that, and perhaps a testimony to the complexity of the subject, the principal regulations and now the procedure regulations, is the fact that, on both, the Government had to take the regulations hack several times before they thought that had got it right. But, even now, it would seem that the Joint Committee on Statutory Instruments feels that the Government have not got it right.
In the December debate, the noble Earl referred to three amendments which had been introduced to the statutory procedural instruments to meet the criticisms of the Equal Opportunities Commission. At that time, as my noble friend said, we welcomed the changes to which the noble Earl referred, particularly the change which enabled the expert to be cross-examined in the tribunal and the parties to bring their own expert witness. Now, as the noble and learned Lord has explained, the real question is whether the tribunal itself is free to make its own judicial determination, as required by the EC equal pay directive.
It seems to me that there are two points here where this is in doubt. The first one is where the tribunal has to decide whether or not it is going to dismiss the case because there are no reasonable grounds for determining the question. As the noble Baroness, Lady Seear, said in the December debate, and as she has mentioned again this evening, the kind of situation that we are concerned with in equal value cases makes it very difficult for a tribunal to rule out a case without hearing the evidence, because we are dealing with a new situation and we are dealing with a situation where previously accepted assumptions are no longer applicable. Therefore, in this respect, the tribunal, if it does decide that there are no grounds for determining the question, appears really to be putting itself into a difficulty, because, despite what the noble Earl said in response to this very same question on 5th December, it does appear that there is some doubt as to whether or not an individual could appeal against such a situation. Certainly there is a difference of opinion as to the grounds on which such an appeal could be made.
734 The second point already made by all the speakers this evening is whether or not the tribunal, having received the report from the expert, can make a really judicial determination. There are two avenues open to the tribunal: it can reject the report of the expert and it can call for a report from another expert. There is no certainty that, having called for a second expert report, the tribunal would feel able to accept that report. So the tribunal has that possibility only: it can reject the report, and it can call for another report. Or, alternatively, it can accept the report and can make its finding on the basis of the report. But what it cannot do is to amend the report in any way, to add to the report or detract from the report. It must accept it in its entirety. Therefore, as the noble and learned Lord has said, this is not really a judicial determination by the tribunal itself. It is one which, as I said in the previous debate. I think will be challengeable under European law.
Therefore we are in a situation where in relation to equal value cases tribunals will be placed in an entirely different situation from industrial tribunals in any other cases. Indeed, I would surmise that they would be in a different situation from those in any cases appearing before a judicial body in this country. They cannot hear expert witnesses, weigh up the evidence and decide how much of the evidence they are going to accept, then make their own finding. It is on that basis that I do feel that these procedure regulations are at fault, and, like other noble Lords who have spoken, I would hope that the Government could once again have another look at them.
§ 8.37 p.m.
§ Lord Campbell of Alloway
My Lords, in a thin House and at a late hour, the noble Baroness, Lady Seear, and all noble Lords who have spoken in this debate, have done signal service in bringing an important matter before your Lordships' House for clarification. I have to confess, with respect to all noble Lords who have spoken, and in particular to the noble and learned Lord, Lord Denning, before whom I have had the privilege to appear on many occasions in other circumstances, that I take a wholly different view. I would ask your Lordships to bear with me while, if I may, I clarify certain misconceptions as I genuinely see them.
As a result of the 1982 decision we had to bring our domestic legislation into line with Community law, to afford attribution of equal value to dissimilar work where there is no job evaluation scheme. Statutory Instrument No. 1794 sought to amend the substantive law. This has been the subject of debate on a previous occasion and is not before your Lordships tonight. We are concerned with Statutory Instrument No. 1807, which amends the procedural law such as obtained under the old Statutory Instrument 1980 No. 884 for England and Wales and No. 885 for Scotland. Here may I say at once that I take aboard Lord McCarthy's point about consolidation of the regulations. That seems to me—I have not given my mind to it—with respect, a wholly valid point.
These equal value amendment regulations before your Lordships' House envisage that the question shall be decided on expert evidence alone as a general rule. This is implemented by Rule 8(2C), which precludes a 735 party from giving evidence or cross-examining a witness, other than the expert witness—I emphasise it—on any matter of fact upon which a conclusion in the report of the expert is based.The appropriate procedure laid down by these regulations is to require the expert to attend for general cross-examination on his report under Rule 8(2A). Herein, in my respectful submission, as I see it, lies the first crucial and cardinal misconception. There is a total freedom of cross-examination of the expert under 8(2A); also, on notice, to require that you should be able to call your expert to give evidence on the question on which the tribunal has already required an expert to report; and, my Lords, to cross-examine the expert called by the other parties.
The only exception to this general rule appears to be under Rule 8(2D) where the matter of fact upon which the conclusion of the report is based is relevant to the defence of genuine material factor in issue before the tribunal; or, if there is no conclusion in the report, on account of refusal or deliberate omission.
Furthermore, as a measure of safeguard, there is what the noble Lord, Lord McCarthy, has called the two-stage process. It is a form of preliminary challenge which may be mounted as to the admissibility of the report under Rule 7A(8) and the tribunal for such purpose may permit any party to give evidence, call witnesses and cross-examine on any matter relevant to such challenge. In submission, what conceivable injustice is there in this procedure?
On preliminary challenge, if the conclusion is unreasonable on correct information it may be challenged under Rule 7A(8)(b) and if for some other reason which includes an erroneous matter of fact upon which the conclusion is based—such as inevitably renders the report, to use the word in the regulation. "unsatisfactory"—it may then be challenged under Rule 7A(8)(c). But once the facts upon which the conclusion is based have survived the stage of preliminary challenge these facts may not be impugned by a party giving evidence or cross-examining a witness other than the expert under (2A). This preliminary challenge, furthermore, can be raised at any time at the hearing even as a preliminary submission.
Furthermore, as I have already stressed twice and stress again because it is a misconception that permeated the speeches already delivered, there is the overall right to cross-examine the expert, unrestricted under Rule 8(2A), and to call one's own expert under Rule 8(2B). Therefore, apart from a facility of preliminary challenge if it fails, the tribunal will have, if the parties so wish, reports from three experts in which matters of fact upon which conclusions are based may well differ.
The conclusions also may differ on the question of equal value. Here again I am bound to disagree with the noble and learned Lord, Lord Denning, because, with respect to him, the court merely discharges its customary functions. It is the court which tries it, not the experts. It is the court which discharges its customary function after cross-examination of these experts on their reports. The tribunal then reaches a 736 reasoned decision on the question upon which it was requisite to seek expert assistance. Why was it requisite to seek expert assistance? It is now a question which lies within the province of these experts, or so-called experts.
This issue of "material difference", as provided by the substantive Regulation No. 1794, excluding reasons such as market forces factors, has become the subject not only of a series of fairly complex decisions in our own domestic law but equally complex and sometimes more complex in the European Court of Justice. It is, with the greatest respect, my personal view that it is largely the drag of complexity from the court across the water which drives our domestic courts into the situation of complexity with which they have to deal in our domestic laws. There are many branches of law where the whole issue of liability turns upon expert evidence. I give just one example: the medical negligence cases. In this area this clearly lies within the province of the expert.
Before concluding may I say in answer to the noble Baroness, Lady Seear, that there is the right to cross-examine an expert. Full cross-examination is preserved under Rule 8(2A). Therefore, there is no reason to question the validity of the statement previously made by my noble friend Lord Gowrie which, in my view, has been fully vindicated. The misconception could arise the other way round by construing the word "witness" in Rule 8(2C) as relating to an expert, which on no canon of construction could it.
In answer to the noble Lord, Lord McCarthy, I would respectfully say that his belief is well founded, as previously expressed. I have taken his point about consolidation, which is a good point of great value. As regards the speech of the noble and learned Lord, Lord Denning; yes, I agree that the regulation is drafted with a degree of obscurity. However, it is not, for the reasons I have sought to give, so obscure as to warrant the strictures which have been passed upon it. This is not a trial by experts as, on due analysis, I have sought to show. It is not right to suggest, in virtue of Rule 8(2A), that the expert cannot be cross-examined on the facts on which his conclusions are based.
As regards the noble Baroness, Lady Lockwood, I should like to ask her three questions. Why should a tribunal be able to amend a report? What useful purpose could that serve? What conceivable challenge could ever be mounted under European law? On the machinery for the determination of the question, Her Majesty's Government have found in these regulations an appropriate answer and, I suggest, a fair means of resolution.
§ Lord McCarthy
My Lords, may I ask the noble Lord a question to see whether I have understood him right and, if so, ask through him whether the Government will say that they agree with him? The noble Lord appears to be saying very clearly that these rules mean that one can have three reports—I take it that he means one which is the tribunal's initiated and authorised report; one from the employer, as it might be, and one from the union for the worker. Is the noble Lord telling us—and if he is telling us this, do the Government agree—that all three reports have equal status before the tribunal? Is he saying that they have 737 equal access to facts, and can represent facts equally, even if those facts differ?
Is the noble Lord saying that they can use their own arguments, not simply arguments that they make in cross-examination, and that, so far as the worker is concerned—and this is a very important point—they have equal access and can go into the firm? Is the noble Lord really saying that the rules mean that there could be three reports with equal status before the tribunal, and the tribunal can decide between them? If that is the case, do the Government agree?
§ Lord Campbell of Alloway
My Lords, I shall try to answer the noble Lord directly. Yes, as I construe the regulations, there are three reports. No, I am not suggesting that they all have equal status. The status of the expert appointed by the court, I would have imagined, would have been on a different plane from the status of experts appointed by the parties. As I see it—I may be wrong—this question of status is rather like the status of a witness who goes into the witness box. They all go in equal, but they do not come out equal, and they have to be cross-examined. So at the end of the day the status reflects how they show up under cross-examination in the eyes of the tribunal. Therefore I would say, with respect, to the noble Lord that he is asking a somewhat academic question, which I am trying to answer, but I think that at the end of the day it is resolved by the impression that the witnesses make.
On the noble Lord's final point as to whether my Front Bench agree with me, I would say that they never have yet, and so I do not see why they should tonight. But that is my interpretation of the regulations.
§ 8.52 p.m.
§ Lord Wedderburn of Charlton
My Lords, I had hoped that by now the noble Earl would have been at the Dispatch Box, following the speeches of my noble friend, the noble Baronesses, Lady Seear and Lady Lockwood, and the noble and learned Lord, Lord Denning. But alas! it is not so, and it seems that the Government are going to defend these quite extraordinary regulations. This is, I fear, another example of the Government being rather stubborn with their proposals in the area of employment law, as we have found on many previous occasions in which the noble Earl has been a fixture among his changing right honourable friends.
It is an area where this time the Government have, I would submit, got themselves into trouble for very simple reasons. They began with regulations that were, so to speak, a Stone Age rejection of judicial process, and they have tried to insert into that structure layers of improving Bronze Age and slightly more modern proposals; and the thing is a terrible mess. In this House on 5th December they were told that it was a mess, and though we were not then directly debating the procedural regulations, Hansard shows that they formed a substantial part of the debate. The joint committee has now put forward a case against the regulations as they stand.
I wish at once to make it clear that, with great respect, I do not agree with the noble and learned 738 Lord, Lord Denning, that the expert has as it were no role to play. I believe that expert evidence on the matter of equal value will be very much required in whatever judicial body comes to determine the difficult issues at stake. I would say that legal chairmen of the tribunals, and indeed, with respect, perhaps chairmen of appellate courts, too, might, regardless of what courses the experts have or have not taken, do better with some expert guidance than they would without it.
But it is a question of balance. The issue is whether the regulations put the official expert—as we must now call him, because each side can now call expert evidence—in a position of predominance in the procedure which invalidates it, or may well invalidate it, as a judicial process in the British, as well as the European, meaning; and I apprehend that they do not differ particularly on this point.
The crucial issue is whether the tribunal effectively decides the issue on proper evidence. In their reply to the joint committee, the Government have said, yes, it does, because it hears and assesses all the evidence before it and decides accordingly. That is in the appendix to the joint committee's report.
But that begs another question. Does the tribunal have all the proper evidence to assess? It is no acccident that Rule 8(2C) has featured prominently in your Lordships' debate tonight. Indeed, one question that one could put to the noble Earl is: why in this modern formulation of the procedural rules is Rule 8(2C) there at all? Certainly one would ask, why is it there in this form? It belongs to the Stone Age, to the days when the expert could not be cross-examined. Yes, in that age one could understand it. But today in the form in which it appears it is rather puzzling.
The noble Lord, Lord Campbell of Alloway, cited the rule, and I should wish to do the same, since I depart from him somewhat in my understanding of its place and its context. I should like to take your Lordships on this brief route in the way in which I would argue the point. Rule 8(2C) provides that, with two exceptions,no party to a case involving an equal value claim may give evidence upon, or question any witness upon, any matter of fact upon which a conclusion in the report of the expert is based".I now turn to the point that the noble Lord, Lord Campbell, made. When we come to the exceptions, we find that one of them, in Rule 8(2D) refers us, in the way that rules do, back to two other rules, (2A) and 2B), and there we find it clearly stated that the expert can be cross-examined when he is called before the tribunal. No one—certainly not I—would take issue with the noble Lord, Lord Campbell, that that is the case, because the rules state so very clearly. It is stated that the expert can be cross-examined and it would be rather daft (if I may use the word) to suggest that the rules say anything else.
But, with respect, that is not the point. Now the issue is not whether the expert can be cross-examined; the Government have given in on that, having moved on from their stone pick days. Now the issue is: can the parties adduce to the tribunal sufficiently—because it is a matter of balance—the facts upon which the tribunal may decide the issues in their totality? It is in regard to that issue that Rule 8(2C) is still somewhat of 739 a mystery and in my submision something that gives the lie to the idea that these are acceptable regulations.
The two exceptions—except of course for the cross-examination of the expert and the bringing of one expert each by each party—relate, first of all, to Rule 7A(9) and Rule 7A(8) by reference, which are concerned with the "admissibility problem", as the Department of Employment answer in the appendix to the joint committee's report calls it. This is the stage at which the tribunal has to decide whether or not there are grounds for rejecting the report altogether. At this stage, the grounds on which evidence can be brought relate to the formalities, to a failure to be fair, (and here I wish to pause over the two other matters), to a reason which renders the report unsatisfactory for a material reason other than disagreement with the conclusion about equal value—and that does not really go to the point—or, as is stated in Rule 7A(8)(b), to where the conclusion of the expert could not reasonably have been reached on the facts as he has them, on the information supplied, and on the representations made to him.
There is no room there for new facts after those initial hurdles of admissibility have been overcome. As the Department of Employment correctly suggest, those are matters for the initial admissibility of the report. So 7(9) does not help the Government if they want to have a proper collection of evidence before the tribunal that a party may wish to bring other than the party's right to bring expert evidence. This is a matter of some importance. Rule 8(2B) now allows each party to bring an expert to give expert evidence. That does not comprise evidence as to all the matters of fact which the party may wish to bring as a crucial part of his attempt to demolish the case that is made either in the report, or in some other way, but certainly, so far as 8(2C) is concerned, in the report of the expert. The right to have an expert witness does not overcome the problem of 8(2C). Indeed, how could it? If the right to bring an expert witness let in any matter of fact, then of course 8(2C) would be repealed and the Government would sensibly have done away with it. And they have not done away with it.
§ Lord Campbell of Alloway
My Lords, I am grateful to the noble Lord. This is not an intervention of any type of spoiling nature. It is for clarification. I wonder whether the noble Lord agrees with my interpretation of C. I think that he does, but he has not said so. It is that, if you get a fact in that report that is erroneous, then you can bring that up under C and ask on admissibility to have the report cast out. Does the noble Lord agree with my interpretation?
§ Lord Wedderburn of Charlton
My Lords, the noble Lord refers to Rule 7A(8)(C). It is, of course, correct that at that stage of arguing about the admissibility, it must be possible to present to the tribunal a material reason that the report is unsatisfactory other than—this is the limitation—disagreement with the conclusion that the applicant's work is or is not of equal value or with the reasoning leading to that conclusion. The limitations of that proviso are extremely uncertain but they would certainly exclude some facts which a party would wish to adduce 740 because they would go directly to the reasoning and to his conclusion. But that only concerns admissibility. I have stressed that I agree with the Department of Employment memorandum that 7(8) and 7A(9) are concerned only with that.
When we come to the issue of the conduct of the substantive case, there is only one area, apart from cross-examination of the expert, where we can go to find an exception to 8(2C). That is 8(2D), which deals with two matters. The first is the defence of genuine material factor, which is not at issue in the debate because we are talking about the facts relating to equal value, not the particular defence of genuine material factor, and the second is where the report of the expert contains no conclusion on the central question and the tribunal is satisfied that the absence of the conclusion is due to the refusal or deliberate omission of the person required to furnish information to do so. Those do not get anyone home. If they want to bring in the substantive trial of the action, if I may call it that, in the tribunal, after admissibility, a witness as to fact relating to the central matter, such as the example that the noble Baroness, Lady Seear, gave about the way in which the work is done and the occasions upon which the woman worker and the man worker do certain things that are central to the report of the expert, they do not seem to fall under any of the exceptions.
The noble Lord, Lord Campbell of Alloway, I suspect, knows, as I do, that there will be lawyers who will get these facts in. The structure is so complex that in a cross-examination, somehow, one will manage to get something in. One will stretch the rules. I apprehend that the tribunals will stretch the rules. But why should the tribunals have to stretch the rules? The Government have spent nearly two years—a year and a half—at this job. It is the simple matter of devising a procedure and, in disagreement with the noble Lord, I would say building in an expert, building in some provisions for expert opinion being rather more equal than the other equal witnesses. Yet they still cannot do so in a way that the joint committee thinks satisfies judicial process. Equally valid is the way that the joint committee has, with great politeness, told the Government that there is lack of the sort of clarity that one is entitled to accept.
For these reasons, I submit that the Government—I do not mean this in any offensive spirit but as a matter of sheer description—may be seen to be suffering from some curious hubris in this area if they refuse to take away a set of regulations which, from various points of view and standpoints, have been admonished in the terms that we have heard tonight and on earlier occasions.
§ 9.6 p.m.
The Earl of Gowrie
My Lords, I feel slightly tempted to take myself off and appeal to the European Court of Human Rights. I had thought that I had accommodated your Lordships to a very large degree in these regulations and that you would, in fact, be rather pleased with me. When the Equal Pay (Amendment) Regulations were debated in this House on 5th December a number of your Lordships had serious reservations about them and were anxious that they were not fully in accord with European regulations. As a consequence, we made major 741 changes. In particular, we altered the regulations to ensure that the parties would have the chance to comment on the facts and on the representations of other parties. We made provisions for parties to cross-examine the experts—I shall come to the issue of the experts later—and to call alternative expert witnesses. We also made provision for them to ask the tribunal to put written questions to the experts. We rephrased the original draft to make clear that tribunals should only reject cases without commissioning an expert report in clear-cut cases where it was obvious that the claim could not succeed.
The Earl of Gowrie
Yes, my Lords, but first I should like to finish the point. A number of noble Lords—the noble Lord, Lord McCarthy; the noble Baroness, Lady Seear; the noble Baroness, Lady Lockwood; and my noble friend Lady Platt—expressed some satisfaction with the changes being made in the light of these consultations. The procedure regulations which we are considering today are identical to the revised draft regulations which were made available to your Lordships, with an explanatory note, before our debate in December. So, as I said earlier, I had hoped that your Lordships would at least be, guardedly, slightly more pleased with me.
§ Lord McCarthy
My Lords, the noble Earl seems to me—and I am asking him whether he accepts this—to be contradicting himself. As regards the first part of what he said, he seemed to be saying that, as a result of the debate on 5th December, he had changed something. But as I read the final schedule which is published here, I find that it is word for word the same as the draft that we had before us at 5th December. Is it not the case that after 5th December, when we debated both the regulations and the draft rules, absolutely nothing was changed?
The Earl of Gowrie
My Lords, the point that I was making was that we did take very closely into account, in looking at this legislation, the views of your Lordships' House. However, I take the point made by the noble Lord, Lord McCarthy, that the procedure regulations, with which we are concerned tonight, were not changed; but it was not represented to me that that was the area of difficulty. I tried to meet the House on the areas of difficulty which were presented to me and which I outlined a few moments ago as matters about which I had sought to try to accommodate the House.
Following their approval by Parliament the Equal Pay (Amendment) Regulations came into operation on 1st January and, as the noble Lord, Lord McCarthy, has just reminded us, they are not of direct concern to us tonight. But I think that they are relevant because I want to repeat the assurance that I gave in the House during our debate and subsequently, that it remains our conviction that the regulations are in full conformity with European law, and it is to achieve this that the Government have been working so long and hard taking on board the points which noble Lords have made.
742 That being the case I rather doubt that your Lordships will want me to go into great detail on the procedure regulations now, although I will of course try to respond in just a moment to particular points raised in the course of debate. Before I do so, let me come to the particular point which nearly everyone raised—I think it was initiated by the noble Baroness—concerning the new Rule 8(2C) which says that no party may give evidence upon or question any matter of fact upon which a conclusion in the report of the expert is based.
I think that there is some misunderstanding of the purpose and effect of this provision and I make that comment particularly to the noble Lord, Lord Wedderburn. It will not prevent parties from bringing to the tribunal's attention mistakes or omissions of facts in the expert's report. Parties will have two opportunities to do this. And it will not prevent the parties from bringing evidence in support of such matters. It merely seeks to ensure that such evidence is brought at the appropriate time.
Under the new Rule 7A(3)(b) and (c) the expert will be required to prepare a written summary of all the information and representations made to him and to send this to the parties inviting comments before preparing his report. His report must contain the summary sent to the parties and a brief account of any representations from parties on this summary. One would expect errors of fact or omissions to be identified and put forward by the parties at this preliminary stage.
If, however, the final report still contains a mistake or omission, the parties will be able to bring this to the tribunal's notice and to call evidence in support of this contention before the tribunal admits the expert's report in evidence. The new Rule 7A(8) sets out the grounds on which a tribunal can decide to reject a report and these can include errors or omissions. The new Rule 8(2C) therefore applies only after the expert's report has been admitted by the tribunal as evidence. It would surely be superfluous to reopen questioning on facts at this late stage and would serve only to lengthen tribunal proceedings and to encourage parties to withhold relevant evidence from the expert. I think that we all view that as undesirable.
The provision for an employer to advance a material factor defence before as well as after an expert has reported has also been criticised. In our debate on 5th December the noble Lord, Lord McCarthy, described this as offering two bites of the cherry. But in some circumstances it seems only common sense to hear the material factor defence before the expert's report is obtained. It would be wrong to subject an applicant and her employer to the delay necessarily involved in the preparation of an expert's report and the possible inconvenience from his investigations in a case where, whatever the expert's conclusions on relative value equal pay would not be awarded. The regulations have, however, been so worded as to limit the initial consideration of a material factor defence to clear-cut cases where it is obvious that claims cannot succeed.
The fact that an employer can also put forward a material factor defence after an expert has reported will not mean that an employer will be able to deploy 743 the same arguments twice with any hope of success. An employer rehearsing a rejected argument without fresh grounds or evidence would naturally be likely to get short shrift from a tribunal, and he could even in those cases incur the payment of costs.
The noble Lord, Lord McCarthy, was also concerned that a case could apparently be dismissed without a tribunal giving reasons. This is not so. The tribunal does not have to commission an expert's report when it is satisfied that there are no reasonable grounds for determining that the jobs to be compared are of equal value. In these circumstances it will dismiss the application. But where it does so the tribunal must give the reasons for its decision, and like all tribunal decisions these can be appealed to the employment appeal tribunal.
§ Lord Wedderburn of Charlton
My Lords, I hesitate to interrupt the noble Earl, but before he leaves the point entirely I want to make sure that we have the case aright. Is it not the case that after the expert's report has been admitted the only person who can call a witness upon matters of fact on which the conclusions of the report of the expert is based is the employer in respect of the genuine material factor?
The Earl of Gowrie
My Lords, I would need to study the noble Lord's words very carefully, but they sound as though they are consonant with what I was saying. However, I would need to compare his text with mine before I gave a "judgment"—and I use that word in inverted commas in this context.
I come now to the issue, which I acknowledge has been a damaging issue, that the regulations are too complex. Certainly as a Civil Service Minister with a strong drive to bring back Sir Ernest Gowers, or to show that he is alive and well in spirit, I have been worried about this aspect of the regulations. I think it was extremely difficult to avoid complexity when we were building on an existing Act which is complex in itself and when safeguards were necessary so that we could be fair to all. However, I would say to the noble Lord, Lord McCarthy, that we will try to explain the amendment as clearly as possible in a revised guide to the Act. A short leaflet, Equal Pay for Women—What you should know about it, has been available since the beginning of the year at job centres, employment offices, unemployment benefit offices, the EOC and citizens' advice bureaux, and a full guide to the Equal Pay Act, amended to take account of the equal value provisions, will be available shortly. Preparation of this guide has been delayed by the need to consult interested organisations and to await the outcome of today's debate in your Lordships' House. But I have been worried about this, and I wholly agree with my noble friend Lord Campbell of Alloway in his use of the phrase:the drag of complexity from the court across the water".I rather regret this, but I think that noble Lords will recognise that equal value has been a somewhat complex and difficult concept in terms of our legislation.
It is precisely for this reason that I come to my penultimate point in answer, particularly, to the 744 objections raised by the noble and learned Lord, Lord Denning, about the role of the expert. The question before the expert is whether jobs are of equal value. This is not a matter of legal expertise and of the famous common sense, so to say, with which the noble and learned Lord has imbued our legal system for so long, but of a particular set of experiences in respect of industrial relations. As the noble Baroness, Lady Seear, implied, this is not an expert science or specialism, but the experts do need to have industrial relations experience as a guarantee of their suitability and therefore of their expertise. It is for that reason that they are being drawn from the ranks of ACAS.
My noble friend Lord Campbell again directly answered, in my view, the anxiety of the noble and learned Lord, Lord Denning, that in some way experts would be taking over from the court. The court needs the expert evidence with its industrial relations experience, but it alone pronounces upon it. That is why there is, in our judgment, fair judicial determination.
§ Baroness Lockwood
My Lords, may I ask a fundamental question on this? If the tribunal, having heard from the official expert and the experts perhaps of the applicant, favours the evidence of the applicant, could the tribunal, in those circumstances, make a decision in favour of the applicant but in contradiction to the official expert's report?
The Earl of Gowrie
My Lords, that would be my understanding, yes. I cannot see why that should not be so as the tribunal is the final arbiter of the issue.
There was put to me the point about the three reports. The three reports all have equal evidential status in theory. In practice, tribunals are likely to have more regard to the report of the tribunal appointed expert—and I think this gain amplifies the answer I made to the noble Baroness—if only because it is impartial, whereas the evidence given by experts called by the parties is not literally impartial in a judicial sense. The parties' experts do not have any rights, and I am sure that the noble Lord, Lord McCarthy, understands that it would be most unusual to give witnesses called by one party rights of access, and the like. But this does not mean that the tribunal will always follow the report of the expert appointed by the tribunal. The evidence of the experts called by the parties can show that he is mistaken in his reasoning, or conclusion.
§ Lord Tordoff
My Lords, but not, as I understand it, in relation to fact. That is at the heart of this whole matter.
The Earl of Gowrie
My Lords, surely what it is at the heart of the whole matter is that the tribunal does in the end have to take a view and make a judgment. But where you are dealing with issues of work of equal value, you are not dealing with easily, or precisely, definable facts. Some appeal to expertise or evaluation is necessary in those instances.
To conclude, I would remind the House that the procedure regulations now before us reflect, as they must, the Equal Pay (Amendment) Regulations already approved by Parliament. They have been 745 framed to provide a tribunal procedure which will be helpful and logical as far as the tribunal is concerned and will also, by giving the tribunals the greatest possible scope to consider parties' views, benefit applicants and employers concerned with the claim. This is the particular intent of the significant changes we made following consultations. The procedure regulations play an essential part in giving practical effect to women's right, from 1st January this year, to claim equal pay for work of equal value, as has been our aim in coming into conformity with European law. I therefore, in the interests of that, which I think we are all agreed is a desirable conformity, urge the House to reject the Prayer.
§ Lord Wedderburn of Charlton
My Lords, before the noble Earl sits down, may I ask him this? In view of the matters which have been discussed tonight could he perhaps consult with his right honourable friend, and then with the presidents of the tribunals in England and Wales and Scotland, to see whether experience will not quickly show, or whether their opinion is not, that some residual (exceptional no doubt) power should be given to the tribunal to admit fact after the admissibility of the expert's report?
The Earl of Gowrie
My Lords, I will undertake to see that my right honourable friend goes through this debate with a toothcomb. I believe that I have answered most of the substantive points which the noble Lord and others have put to me, but I will look at the debate and measure what noble Lords have said against what I have said. Perhaps I can work an informal consultative method by correspondence or otherwise to say why I feel that I have met the points that noble Lords have made.
§ 9.25 p.m.
§ Baroness Seear
My Lords, we are grateful to the noble Earl, Lord Gowrie, for the attention he has given to the points and the replies he has given. I am sorry that he feels, as apparently he does, rather hurt that we have not adequately appreciated the efforts he has made since 5th December to improve on past performance. But as a former don he will know that there are no marks for trying; there are only marks for producing a better result. I am sorry to say that I am unconvinced that the noble Earl has produced a better result.
The crux of the matter remains this question of the establishment of fact and disagreement on fact and the ability of the tribunal to hear what different people with different views have to say about the alleged facts. As I understand it, the crux of our argument is about Rule 3(2C). As I understand the noble Earl, he has said that the argument about facts will take place, so to speak, in writing on the expert's report before it 746 reaches the tribunal. One has the opportunity to take exception to the facts that have been put into the report in writing. That is quite different from being able to call before the tribunal one's witness to establish that the facts that have been put into the expert's report are not such as one accepts as being invalid. Therefore, I do not consider that the explanation that has been given by the noble Earl in regard to this crucial Rule 8(2C) meets the objections which have been put forward.
Nor can I accept what the noble Lord has said which is very much on the lines of, "We have tried, done our best, and you should be pleased with our efforts and that it is now clear". It is crystal clear that it is not clear and everyone who has spoken in your Lordships' House tonight, including the noble Earl, Lord Gowrie, has admitted that it is extremely confused.
I come in at the end of this debate where I started. If we in your Lordships' House are so muddled about what these regulations mean, after having heard the noble Earl as well as before, what hope is there even with a child's guide to the regulations—if anybody is able to produce a child's guide to these regulations: some child, some regulations!—that anybody will understand and make a success of interpreting what is admittedly a very difficult issue?
I am sure the noble Earl is extremely wearied about this subject and does not want to hear any more about it, but it is still with us and will continue to be with us; we cannot just wish it away by regarding it as a great bore. I once again make the suggestion that there is one way in which to overcome much of this difficulty. I have put it forward on Second Reading and on one other occasion; that is that we should move along the lines of having the job evaluation schemes within organisations as being approved as being free of sex discrimination. Once they are approved as being discrimination-free schemes, cases do not come to tribunals. I agree that this is somewhat outside the issue of the discretion of these regulations. But if we have established anything at all tonight it is surely that the interpretation and administration of these regulations will get us into a great deal of difficulty. I have not the slightest doubt that it will get the Government hack to the European Court sooner or later, whereas if we tried to work by establishing that schemes in organisations were free from discrimination, once that was adequate for meeting the case then we would not have this kind of case coming before the tribunals. I believe this would save us a very great deal of trouble, and I do urge the noble Earl to consider this very seriously and to discuss it with his noble friend and with his advisers—or perhaps just with his noble friend.
In view of the unfortunate fact that I gather it is not normal practice to divide the House on regulations of this kind, I wish to withdraw my Motion.
§ Motion, by leave, withdrawn.