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Lord Redesdale: My Lords, the Minister has gone further than he has before in saying that if the pilot scheme should fail for any reason, he would seek the services of the MDP again which was really my question from the outset. I think it will give some comfort because that option hopefully will still be open. The difficulty we have is that we do not wish the scheme to fail. Indeed, if it is cost-effective and produces the results that the Minster outlined, there would be a good deal of support for some of the objectives--as long as the benefits outweighed the disadvantages that we foresee could take place.

That being the case, and also realising that the Minister is of the view that there will not be any failure and that that might colour his judgment of the results of the pilot scheme, I shall not press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Sex discrimination: Great Britain]:

Lord Judd moved Amendment No. 3:


Page 15, leave out lines 30 to 45 and insert--
("(9B) A complaint to which subsection (9A) applies may be presented to an industrial tribunal under section 63(1).
(9C) Notwithstanding subsection (9B) of this section, a complaint to which subsection (9A) applies may be made to an officer under the service redress procedure applicable to the complainant.").

2 Jul 1996 : Column 1392

The noble Lord said: My Lords, in moving Amendment No. 3 standing in my name and that of my noble friend Lord Williams, I shall speak also to Amendments Nos. 4 to 18. The purpose of these amendments is to ensure a right to pursue a complaint either internally or straight to a tribunal and to ensure that the right to go to a tribunal is not dependent on first pursuing a complaint internally.

We recognise that in Clauses 21 to 27 the Government are endeavouring to achieve consistency. Indeed we applaud that. All our amendments are designed to fulfil that same purpose. It may be useful to outline the present position and the areas of agreement which exist between ourselves and the Government.

Perhaps we could concentrate on sex discrimination and race relations. It is our case that the other amendments dealing with equal pay, employment, industrial relations and Northern Ireland all seek to establish the same principles in each of those spheres. At the present time under the Race Relations Act there is a right only to complain through the internal procedures, and under the Sex Discrimination Act there is a right to complain to an industrial tribunal but the Act does not provide for complaints to be made under the internal procedures.

The Government's proposal is that any complaint under the Race Relations or the Sex Discrimination Acts must first be made through the internal procedures and, following that--I underline the word following--complaint may be made to an industrial tribunal. In other words, the internal procedure is a statutory precondition for application to an industrial tribunal.

As I have said, under our proposed amendments any complaint may in future be made direct to an industrial tribunal and may also be made through the internal procedures. I believe that we have a consensus in the House that servicemen and women should not be denied access to the industrial tribunal. We also have a consensus that servicemen and women should be able and indeed encouraged to make a complaint through the internal procedure. The issue at stake is solely whether it should be a mandatory pre-condition that for all discrimination complaints the internal procedure must first be utilised.

The Government hold that Clause 21 does not represent a diminution of rights under the Sex Discrimination Act. It is the case that the Sex Discrimination Act does not currently include reference to the separate service redress procedures under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Since those are statutory procedures, it may well be that primary legislation is required in order that the defence counsel can have jurisdiction to deal with sex discrimination complaints.

To the extent that Clause 21 provides an additional right, it is clearly to be welcomed. However, the clause also proposes to remove the existing right to complain directly to an industrial tribunal and that, I suggest, unquestionably constitutes a loss. Further, if at present a serviceman or woman can complain directly to an industrial tribunal, then to require that person to undergo

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the internal procedure, whether or not he (or she) would choose to do so, does restrict his (or her) right of access to an industrial tribunal.

As the Commission for Racial Equality and the Equal Opportunities Commission both have argued, to go through any procedure on a complaint of discrimination can be extremely stressful. Where service personnel are either intimidated by or lack confidence in the internal procedure, to require that procedure as a pre-condition may obviously deter them from seeking redress altogether.

I suggest that there is no dispute between the Government and us concerning all the very positive arguments for use of an internal procedure in the Armed Forces, whether for the benefit of the complainants, whether to receive quick resolution of grievances or whether for the chain of command to be made aware of problems at an early date. We on these Benches certainly favour it as an indispensable means of internalising real commitment to the objectives that the Armed Forces themselves now commendably endorse. It is important to note that the CRE and the EOC strongly believe that the use of internal procedures should be encouraged.

What is not agreed between us is that the only effect of making the internal procedure a statutory pre-condition is a short delay. That is, if the Minister will allow me to use his own word from a previous debate, a "disappointingly" blinkered attitude by the Government. There are the effects on the complainant and on any other parties in an internal investigation, including fear of victimisation, further harassment or discrimination. There are also potential disadvantages to the complainant in terms of an ultimate complaint to the industrial tribunal, if that complainant has had to present and argue the case up through the chain of command when some of those involved will be witnesses for the service when the case is eventually heard by the industrial tribunal.

The Government have expressed concern about undermining loyalty or taking steps to lessen the effectiveness of internal procedures. For the debate in Committee on whether Clause 21 should stand part of the Bill, that may have been relevant. But in the amendments that we now propose, which would remove the compulsory nature of internal procedures and instead make them available on a voluntary basis, neither loyalty nor the effectiveness of internal procedures need be at risk. The task for the services will be to take whatever action is needed to ensure that servicemen and women feel confident that their complaints will be dealt with effectively and fairly under the internal procedures.

The government response in Committee to our arguments about a lack of right to an oral hearing in the internal procedure entirely missed the point. It is not that a complainant may want the opportunity to communicate orally but that that complainant should be entitled to hear the evidence against the case and to cross-examine witnesses. Many cases in the courts and tribunals are decided on the basis of which witnesses are most credible, particularly when any

2 Jul 1996 : Column 1394

conflict in evidence is challenged by cross-examination. Without the right to request an oral hearing, the complainant is at a disadvantage in the internal procedure. In contrast the industrial tribunal hearings are always oral.

Perhaps I may be permitted one general observation. In Committee, the noble Earl spoke at some length about the value and importance of the internal complaints machinery, which he saw as threatened by our amendments. But the amendments positively seek to preserve the internal procedure--the importance of which we cannot over-emphasise--alongside the right to go to a tribunal.

Before concluding, I add a brief word on the amendments dealing with time limits. The relevant clauses as drafted establish a six-month time limit for applications to an industrial tribunal for serving members of the Armed Forces, because they are required to complain internally first. There is to be a three-month time limit for internal complaints. For service personnel and all other employees, who under the relevant sections can now complain to an industrial tribunal, the time limit is three months, although the tribunal has the discretion to accept a late application:


    "if, in all the circumstances of the case, it considers that it is just and equitable to do so".

It has been argued that time limits for service personnel to file claims should be longer than those for civilians, because they might be unable to meet the three-month deadline if, for example, they were on active duty in a ship or submarine. But we believe that there is merit in treating equally all persons who may file proceedings and that situations such as those mentioned would very likely be grounds for a tribunal to allow an application to be filed out of time. In these matters, not least for reasons of service morale and effectiveness, unnecessary delay will never be helpful. These amendments therefore delete the subsections which give the longer time for serving members of the Armed Forces. The effect is that the same time limits will apply to service personnel as to all other employees. I beg to move.

8.45 p.m.

Lord Redesdale: My Lords, I rise to support briefly the amendments of the noble Lord, Lord Judd. There seems to be a common consensus in these amendments that there should be the ability for service personnel to take a complaint outside the chain of command. That could be very important in certain cases, considering that someone might not trust the viewpoint of the commanding officer. The noble Lord explained the matter in detail and I leave it at that.


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