Enterprise and Regulatory Reform Bill

Lord Lester of Herne Hill Excerpts

Monday 4th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I cannot begin to emulate the eloquence of the speech that we have just heard. I too regret that I was not present when this matter was discussed in Committee on 9 January but, after reading Hansard, it is clear to me that the debate was of an exceptionally high standard, particularly the contributions of my noble friends Lady Campbell of Surbiton and Lord Low of Dalston. Unfortunately, my noble friend Lord Low cannot be here today; I cannot begin to take his place, but I agree with everything he said in that debate.

There is another person who cannot be here today for a different reason. He was mentioned by the noble Lord, Lord Wigley, as one of those who led the way in this area of the law in the 1990s and long before that. I refer, of course, to the late Lord Morris of Manchester. It is not difficult for me—or I suspect, anybody else in the House today—to imagine what Lord Morris’s reaction to the proposed repeal of Section 3 would have been. I do not doubt for one moment that he would have regarded it as a serious backwards step, and he would have said so in his usual trenchant terms.

I want to deal first with the argument of the noble Lord, Lord Lester, as a lawyer—I am sure that his heart was not really in it—that if we leave out Section 3 we are losing nothing. Secondly, I want to comment on the reasons given by the noble Baroness, Lady Stowell, at the end of her reply for the Government’s decision to repeal Section 3. The noble Lord, Lord Lester, gave two reasons for his view. The first was that Section 3 was purely aspirational, so it would make no difference if it were repealed. It contained nothing, he said, that could be enforced in a court of law.

However, if that argument were correct, it surely proves too much. If Section 3 is purely aspirational, so, surely, are Sections 8 and 9. How would the noble Lord enforce in a court of law the duty under Section 8 to promote understanding of the importance of equality and diversity? How would he enforce in a court of law the commission’s duty under Section 9 to promote understanding of the importance of human rights? If the legal argument of the noble Lord, Lord Lester, were correct, it would surely mean that we should repeal not only Section 3 but Sections 8 and 9, which would leave us with absolutely nothing. Of course, the truth is that the argument is misconceived. Recent legislation is littered with examples of duties which cannot be enforced in a court of law but serve, nevertheless, a very useful purpose. For example, Section 1 of the Constitutional Reform Act 2005 provides that:

“This Act does not … affect … the existing constitutional principle of the rule of law”.

How is that to be enforced in a court of law? However, it serves an extremely useful purpose.

Another example that occurred to me is Section 1 of the Climate Change Act, which provides that:

“It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”.

How—perhaps I should say, when—is that duty, clearly stated by Parliament, to become enforceable: in 2048, 2049, or when? Therefore, with respect, that argument carries very little weight. For all those reasons, I suggest, with the utmost delicacy, that the legal argument of the noble Lord, Lord Lester, should not deter us in any way from supporting this amendment.

However, the noble Lord had a second argument. He said that there is nothing in Section 3 which is not also contained in Sections 8 and 9, so Section 3 is in effect otiose. I suggest that he is wrong, but suppose for a moment that he is right: if Section 3 adds nothing to Sections 8 and 9, how is that consistent with the Government’s argument all along that Section 3 is too broad? As the noble Lord, Lord Low, pointed out, the Government simply cannot have it both ways. I suggest that he was right. In truth, Section 3 does indeed add something which is not in Sections 8 or 9, and something of the very greatest importance. It provides for the first time in legislation the unifying link between equality and other fundamental human rights. This was the point made by Sir Bob Hepple in his memorandum, which I hope the noble Baroness has read, and which has already been referred to by the noble Baroness, Lady Lister. That deserves an answer and I hope that it will get one. Indeed, the assertion of a unifying principle in Section 3 was surely one of the main objectives of the 2006 Act, as the noble Lord, Lord Lester, himself pointed out when he was promoting the Bill. Therefore, I again suggest, as delicately as I can, that the noble Lord might in this instance have done better to follow his heart than his head.

[Lord Lester of Herne Hill]

My Lords, I was not intending to speak and it is a misfortune for the House that I now do so, with extraordinary brevity. When I joined this House almost 20 years ago, Lord Alexander of Weedon said to me, “Remember, Anthony, that the House of Lords is not a court of appeal, it is a jury. Try, if you can, to speak to a jury”. I totally disagree with almost everything that the noble and learned Lord, Lord Lloyd of Berwick, has said today, and would do so in a court of appeal. However, when we are dealing with a jury whose sentiment has already been powerfully expressed, I do not think that it would do the slightest good if I were to explain exactly why I continue to hold the view that I did previously.

By the way, I did not promote the 2006 Act, but I certainly took part in debates on it and I did not oppose Section 3. However, being a practical person—I am no philosopher—I shall concentrate in these debates on three practical things: one is caste discrimination, the second is the abolition of the questionnaire procedure, and the third is the relationship between the Joint Committee on Human Rights and the commission. I hope that I shall not speak on anything else.

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[The Lord Bishop of Hereford]

My Lords, I pay tribute to the noble and right reverend Lord, Lord Harries, and others proposing this amendment, to which I give my full support. I do not want to delay this debate too much because it is quite clear what many of your Lordships think. However, I will make three brief points. First, I go back to the theme touched on by the noble and right reverend Lord, Lord Harries, and others about the Government’s plans to address this underlying issue by way of education. We have just been reminded about dictionary definitions. Education is from “educere” to lead us out; to lead us out, surely, into greater truth and the fullness of that truth; for us to flourish as human beings; and to become the best human beings we can be. Within that, I believe, the spirit of God leads us into the fullness of that truth of all being valued in the sight of God.

Secondly, we need consistency in how we approach these issues. Yes, there should be education but not only education. As we have been reminded by the noble Lord, Lord Deben, where does that lead? If it does not lead to the possibility of those who are being educated to treat others equally, to have the law support that as well, we let them down and fail them. Surely, our law is but the right ordering of our society. As we have been reminded by the noble and right reverend Lord, Lord Harries, this issue is about the public arena.

Thirdly, and to which the noble Lord, Lord Alton, has drawn our attention, having had this debate, if we should turn away and not support this amendment, we are giving a worse signal than if we had never had the debate. We need the debate and we need it to be in the open. Having got to this point, we cannot let ourselves turn away. That would cause more harm, more damage and more discrimination. I hope very much that the Minister will accept this amendment and, if not, that it will have the support of all the Benches.

[Lord Lester of Herne Hill]

Perhaps I may follow especially what was said by the noble and learned Lord, Lord Mackay of Clashfern, with which I agree. However, first, I recall that the previous Government, led by the noble Baronesses, Lady Royall and Lady Thornton, met with a large group of Dalits, introduced by my noble friend Lord Avebury and the noble and right reverend Lord, Lord Harries of Pentregarth. As I recall, they listened to them for the best part of three or four hours and were deeply affected by what they learnt from them. It was decided to include a power in the 2010 Act precisely to deal with the problem about which they had heard and to get the necessary research, which they did, and then to deal with the problem of legal uncertainty. As I understand it, the whole reason for the power was because it was necessary to deal with the problem of legal uncertainty if the Government were satisfied that there was evidence of discrimination.

During the debates that then took place, the noble Baroness, Lady Warsi, played a conspicuous role. I was looking back to some of the things that she said. She referred to a study, Hidden Apartheid—Voice of the Community—Caste and Caste Discrimination in the UK. She said that the study,

“illustrates that there is a real and widespread problem, whereas that does not appear to come back from the Government's consultations”.—[Official Report, 11/1/10; col. 340.]

She also referred to a “serious problem”. I pay tribute to her for that.

The noble and learned Lord, Lord Mackay, rightly suggested that it is strongly arguable that the concept of race, notably of ethnic origins, might be capable of being extended to cover caste. I agree with him that that might be possible, especially when one considers the position of Jews and Sikhs. In the Jewish free school case, the Supreme Court had to deal with a dispute between orthodox Jews and Jews outside the United Synagogue. The Supreme Court interpreted the notion of ethnicity to include descent and held on the fact that a school was discriminating on the basis of descent as part of race.

Many years before, in the Sikh Mandla v Lee case—in which representation was made by an extremely able young advocate, now the noble and learned Lord, Lord Irvine of Lairg—a school refused to allow a Sikh boy to be a member of the school if he wore a turban. The House of Lords decided that the word “descent” as part of ethnic origins was capable of being construed to treat Sikhs as being protected by the Racial Discrimination Act.

We are in the position in which some 300,000 Jews—as the noble Lord, Lord Deben, indicated in his extraordinarily powerful speech—and 300,000 Sikhs in this country are protected against race discrimination as ethnic groups, but Dalits are not yet protected. It would take a case all the way to the Supreme Court to try to prevail in the way that Sikhs and Jews have done.

Noble Lords will have read in the newspapers that there was indeed a test case brought in an employment tribunal by Vijay and Amardeep Begraj. After a 36-day hearing, the judge recused herself on the application of the defendant after a visit from two West Midlands Police officers. As a result, there is no determination of their complaints of caste-based discrimination, caste-based victimisation and caste-based harassment. They ran out of money, and I cannot imagine how it would be possible for anyone in the Dalit community to be able now to bring a case that could go before a tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. It would cost hundreds of thousands of pounds for the costs of both sides.

Therefore, one of the overwhelmingly strong reasons for supporting this amendment is not, as was suggested by the noble Lord, Lord Alton, that it is declaratory. The whole point is that it is not declaratory: it would bring the Dalits within legal protection. They would at last have effective remedies.

[Lord Alton of Liverpool]

I was trying to say—and perhaps my voice was not particularly helping—that it was more that we had made a declaratory statement in the earlier amendment and I felt that it would be a negative declaratory statement if we were not to pass this amendment because of the message that it would send, not just to the 400,000 Dalits in this country but to those living in India.

[Lord Lester of Herne Hill]

I am most grateful. Contrary to the impression that I might create, I am not simply a cold-hearted lawyer: I value symbols very much indeed.

I finish with this about education and legislation. It is almost 50 years since, in 1967, in its first annual report, the Race Relations Board summarised the role of legislation in this way: First:

“A law is an unequivocal declaration of public policy”.

Secondly:

“A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure”.

Thirdly:

“A law gives protection and redress to minority groups”.

Fourthly:

“A law thus provides for the peaceful and orderly adjustment of grievances and the release of tensions” ,

and fifthly:

“A law reduces prejudice by discouraging the behavior in which prejudice finds expression”.

Gandhiji is no longer alive, but I have no doubt that his spirit would guide us in a vote if it is decided to divide the House.

[Lord Cormack]

My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.

As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.

A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?

I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.

If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.

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[Baroness Stowell of Beeston]

I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.

The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.

We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.

In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.

My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.

[Lord Lester of Herne Hill]

Is the Minister aware that the UN Committee on the Elimination of Racial Discrimination has called on the United Kingdom to legislate in this area?

[Baroness Stowell of Beeston]

My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.

The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.

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Moved by

[Lord Lester of Herne Hill]

75: Clause 59, leave out Clause 59

[Lord Lester of Herne Hill]

My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.

The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.

The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:

“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.

The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,

“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.

That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:

“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.

She reviewed the case law and concluded:

“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.

Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there are special difficulties in proving discrimination cases, as the courts have repeatedly said.

The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.

Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.

It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.

These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.

The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.

The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,

“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.

It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,

“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.

I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.

In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.

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[Lord Lester of Herne Hill]

I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?

[Baroness Stowell of Beeston]

To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.

I will return to what I was saying. If parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.

To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.

My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.

In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.

I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.

It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.

We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.