RESTRICTION OF PUBLICITY (Hansard, 24 October 1995)

§ Baroness Gardner of Parkes

My Lords, having sat as a lay member of an industrial tribunal for over 20 years, I should like to have answers to one or two questions. These amendments seem to cover the position up to the announcement of the decision of the industrial tribunal. There appears to be a separate provision to cover the Employment Appeal Tribunal procedure. But there is a period between these two when the person decides whether or not to appeal. I wonder whether or not that period is also automatically covered by the amendments. I should like to be reassured that this is so.

I refer to Amendment No. 54 in particular and also to Amendment No. 50. In each case there is power to make regulations. I wonder why power cannot simply be given directly to the tribunal. The wording is that it may do it of its own motion or at the request of other parties. I wonder why it has to be done just by regulation. There may be a simple answer. I am pleased to see that one matter is being taken into consideration. I refer particularly to those who have been infected with HIV. If it was known that that was the position, future employment prospects might be greatly prejudiced.

§ Lord Henley

My Lords, as the noble Lord, Lord McCarthy, has said, we discussed this matter at Report stage. I believe that the amendment tabled by the noble Lord is designed to address that problem, just as the Government's Amendments Nos. 54 and 55 are designed for that purpose. It will come as no surprise to the noble Lord if I say that I prefer the Government's amendments to his, despite the fact that I normally prefer the briefer of the two. His amendments, whatever other defects they suffer from, have the advantage over mine of brevity. Though mine are four or five times longer, they cover both the Employment Appeal Tribunal and industrial tribunals. I am not quite sure whether his would do so. But I do not feel that there is much between us in terms of what we are trying to achieve. It might help possibly if I were to explain what we are about.

As noble Lords will remember, my noble friend gave an undertaking at Report stage that the Government would consult publicly on the possibility of an extension of the industrial tribunals' power to issue restrictive reporting orders (hitherto confined to sexual misconduct cases) to cases involving medical or other sensitive personal evidence. I do not believe that that needs any explanation. It is fairly self-explanatory of what might be of a personal nature. At any rate, that is something which could be covered in regulations. We can deal with it after further consultations. My noble friend also made clear that the Government would bring forward their own amendments on that point, if that were appropriate, and that is what we have done.

Following that, a consultation exercise was carried out by officials at the Department of Trade and Industry. It was publicised by way of a press notice and for the specialist media there was a pre-briefing session. A total of 76 copies of the consultation paper were issued and 38 responses were received.

Support for the extension of the restricted reporting order power to disability discrimination cases was very strong: some 27 responses in favour and six against. Those who opposed it did so on the grounds that such a 1057 step would be an unwelcome departure from the general principle, which I think we all accept, of open justice. Obviously, the Government recognise the importance of that principle. On balance, though, we consider that the weight of argument in favour of a limited extension of the restricted reporting order powers to cover disability discrimination cases is overwhelming.

I should emphasise that the making of an order would not prevent all media coverage of a case. The press would still be free to report all the evidence and other details of the proceedings. The only thing that they would be prevented from doing would be revealing the identity of the applicant and any other individual specified in the order. Tribunal hearings will still, of course, be held in public.

The noble Lord's amendment takes an approach similar to that of the Government in relation to restricted reporting orders. But it contains an additional element, whether or not by design, I know not. This provides for the industrial tribunal's decision and other public documents to be effected in such a way as to prevent identification of the applicant in a disability discrimination case. I have to say that I feel that that additional element is neither necessary nor justified.

As the noble Lord made clear, he based his amendment on the measures that the Government introduced in 1993 in relation to sexual misconduct cases. Those measures comprised, similarly, two elements. They provided for the making of restricted reporting orders in sexual misconduct cases and they provided for the removal of the applicant's name from public documents in cases involving allegations of sexual offences. I must stress the difference between sexual misconduct cases and allegations of sexual offences. It is a very important distinction to make.

The provisions in relation to sexual offences were broad in nature and introduced in order to ensure that the tribunals could comply with the Sexual Offences (Amendment) Act 1992, which requires permanent protection of a victim's identity in sexual offences cases. The appropriate analogy here is that of sexual misconduct cases not involving offences where the restricted reporting order provisions provide, we believe, sufficient protection.

The Government consider that the media should be free to report an applicant's identity after the promulgation of the tribunal's decision, just as it can in cases of sexual misconduct not involving offences. It seems to us that the kind of exposure from which we are trying to protect disabled individuals would generally arise from the detailed medical and personal evidence given at the hearings rather than from the basic facts of the case set out in the tribunal's decision. We also wish to strike a balance between protecting the interests of individuals who have suffered discrimination and, just as important, exposing employers who have been guilty of it. Such exposure could have a powerful deterrent effect.

My noble friend Lady Gardner asked two questions. First, she asked about the position between the industrial tribunal and the Employment Appeal Tribunal. Perhaps 1058 I may refer her to the definition subsection in Amendment No. 54, subsection (7), where it talks about promulgation: 'promulgation' has such meaning as may be prescribed by the regulations". I believe that that is a matter that may be addressed at that point. If that is not the case, I shall certainly let my noble friend know how we deal with that particular problem. I hope that by answering that question first I have to some extent dealt with her second point about why there should be regulations and why not set the matter out. I believe that further regulations are necessary. I think that we should like to consider that and if appropriate consult on. I hope that that deals with the questions from my noble friend.

I hope too that the earlier comments that I made will be sufficient to enable the noble Lord, Lord McCarthy, to accept that his amendment, wonderful and brief though it is, for once is not so good as what the Government put forward. I hope therefore that he will be content to withdraw his amendment and accept the Government's Amendments Nos. 54 and 55.