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Lord Mackay of Ardbrecknish moved Amendment No. 96:


Page 51, leave out lines 37 to 42.

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 120, 180, 181, 196 and 197. The purpose of this group of amendments is to tidy up and clarify the wording of the Bill.

Amendments Nos. 96, 180, 181, 196 and 197 correct a minor drafting error. Paragraph 8 of Schedule 4 at present refers to the House of Commons Disqualification Act and the Northern Ireland Assembly Act. The provision is modified in relation to Northern Ireland in Schedule 7. However, as the House of Commons Disqualification Act is a UK-wide Act, there is no need for its inclusion in Schedule 7.

Amendment No. 96 deletes the provision on the House of Commons Disqualification Act in Schedule 4, and Amendments Nos. 196 and 197 remove the unnecessary provision from Schedule 7. Amendment No. 181 combines the provisions currently in the schedules and inserts them into Clause 62 for clarity. Amendment No. 180 is a consequential amendment which rewords subsection (2) of Clause 62 to take account of the change to be made by Amendment No. 181.

The effect is to bring the Northern Ireland Disability Council, together with the National Disability Council, within the provisions of the House of Commons Disqualification Act and the Northern Ireland Assembly Disqualification Act. This is a standard provision to

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prevent members of the National Disability Council or the Northern Ireland Disability Council from becoming Members of Parliament or representatives of the Northern Ireland Assembly. Similar provisions are included in other Bills which create statutory or non-governmental bodies. Amendment No. 96 removes paragraph 8 of Schedule 4. Amendment No. 181 inserts the provision into Clause 62 and makes reference to the Northern Ireland Disability Council.

Amendment No. 102 would change the wording of Clause 41 to ensure that it is consistent with that used in other parts of the Bill which deal with criminal acts. With that explanation, I commend these amendments to the House. I beg to move.

On Question, amendment agreed to.

Lord McCarthy moved Amendment No. 97:


Before Clause 36, insert the following new clause:

("Restriction of publicity

.—(1) Schedule 9 to the Employment Protection (Consolidation) Act 1978 (regulations for industrial tribunals) shall be amended by the insertion in paragraph 1 of the following.
(2) After sub-paragraph (5A) there shall be inserted—
"(5B) The regulations may include provision—
(a) for cases involving allegations of the commission of discrimination offences against disabled persons, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation;
(b) for cases involving allegations of such offences, enabling an industrial tribunal or the Employment Appeal Tribunal, on the application of any party to proceedings before it or its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal or Employment Appeal Tribunal.
In this sub-paragraph—
"discrimination offences against disabled persons" means those prescribed in the Disability Discrimination Act 1955."").

The noble Lord said: My Lords, the amendment is grouped with Amendment No. 166 tabled by the noble Lord, Lord Kilmarnock, which is a version of a similar amendment that he moved in Committee where I believe it was Amendment No. 141. My amendment to which I am now speaking, although I shall refer to the noble Lord's amendment, is more limited than his. It is more limited in that it is confined to the employment areas of the Bill. It works on those parts of the Bill which produce claims before industrial tribunals. It does not deal with the non-employment aspects of the Bill, whereas of course the amendment tabled by the noble Lord, Lord Kilmarnock, dealt with both.

I am not putting the amendment forward because I do not believe that the noble Lord was right to say that something should be done on the subject matter of the clause in respect of employment and non-employment cases. I do. It seems to me that the need is slightly stronger on the employment side. In so far as I understood the arguments put forward by the Government when the amendment was moved in Committee, it seems to me that they had some slight case on their side when dealing with non-employment matters because they said that there was a procedure

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whereby people complaining of discrimination in goods and services could take their claims through the small claims arbitration procedure and so find a way of doing what we want to do with the amendment tonight.

My amendment is trying to do something about industrial tribunals. It follows, as faithfully as I can, the model of Sections 40 and 41 of the Trade Union Reform and Employment Rights Act 1993. They had to do with restricted publicity in cases involving sexual misconduct. What the House agreed to do then was based on a government amendment. The Government brought forward Section 40 to the House, although it was widened at that point to make it fairer and more equitable. The Government then wanted to deal with publicity which arose in cases of alleged sexual misconduct before industrial tribunals.

The Government said that employers, in particular, were receiving unfavourable publicity in circumstances in which frequently when the case was heard by the tribunal there was found to be nothing in it. My noble friend Lady Turner suggested to the House on that occasion that if we were going to protect employers from unfavourable publicity, it would be only fair to protect employees. Once that was pointed out to the Government, they agreed.

In the amendment we are trying to achieve the same in the area of discrimination. The Government have already accepted (col. 729 of Hansard of 27th June) that there already are cases—for example, in national security, or where there may be a substantial degree of injury to the undertaking, and, as I have said, in cases of sexual misconduct—where tribunals are allowed to curtail the degree of publicity. Restrictions on publicity orders are made, and they last, of course, only until the decision of the tribunal. Therefore, it is not a case of justice not being seen to be done. It is seen to be done when it has been done; when the tribunal has made a decision it becomes public. Only during the period of the hearing can the tribunal, if it agrees, impose a restriction on publicity in the cases of alleged sexual misconduct.

I believe that there is no real difference between cases of discrimination or alleged sexual misconduct. When the issue was debated in Committee we gave many examples involving cases of HIV or AIDS and mental illness in which appellants did not want discussions and reports of allegations to appear in newspapers. We also gave examples of hotel employers facing allegations of laying people open to viral infections which led to their disability. Of course, the tribunal might decide that that was not the case but until the matter was decided one way or another, understandably, employers said that they wanted a degree of protection.

The fact is that in cases of disability we can put forward a set of examples showing that, reasonably, people want a degree of privacy until the tribunal decides the matter. That is what my amendment seeks to provide. I beg to move.

6.30 p.m.

Lord Kilmarnock: My Lords, the noble Lord, Lord McCarthy, was kind enough to refer to Amendment No. 166 which stands in our names and that of the noble

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Baroness, Lady Masham. It is a revised version of a similar new clause which was moved and discussed in Committee.

On re-reading the debate, I concluded that the Minister had a point because as the new clause then read it would have introduced a blanket privacy provision. That was not our intention. I did not draft the amendment but took it over at the last minute. Had I scrutinised it more carefully I might have discovered that problem in advance.

The amendment has been revised and I wrote to the Minister giving him advance notice. It has been made perfectly clear that what is proposed is purely a permissive and enabling measure and not mandatory on any tribunal. It seems reasonable that a court or tribunal should have at least the same powers as those in Section 40 of the Trade Union Reform and Employment Rights Act 1993, to which the noble Lord, Lord McCarthy, referred. The amendment standing in his name and that of the noble Baroness, Lady Hollis, is closely modelled on that.

As the noble Lord, Lord McCarthy, said, my new clause goes a little wider, covering employment and non-employment cases. Subsection (1) (a) enables a hearing to be held in private. We are talking only of a discretionary power and therefore I do not see why that possibility should be excluded. After all, the capacity for a hearing in private is provided in Section 8(2) and (3) of the Industrial Tribunal Constitution and Rules Procedure 1993. Subsections (1) (b) and (c) reflect closely the provisions of subsections (2) (a) and (b) of the amendment tabled by the noble Lord, Lord McCarthy, in their effects.

I am in some doubt as to whether I should rally behind the noble Lord, Lord McCarthy, in the hope that his amendment is more acceptable to the Government. I find it hard to see how they can refuse the noble Lord's amendment, even if they believe that mine goes a little wider than they would wish. I strongly believe that the Bill should contain provisions relating to confidentiality. There are none at present. I can think of a number of instances in which, from the point of view of both the employer and the employee, it might be desirable for proceedings of a delicate nature to have reporting restrictions placed on them.

I shall listen carefully to what the Minister says and I shall make up my mind at the end of the debate.


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