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Earl Howe: My Lords, Clause 21 continues servicemen and women's existing access to industrial tribunals in sex discrimination cases, but introduces a requirement for them first to use the services' internal redress of complaint procedures. As a corollary of this, the clause extends the three-month time limit for making complaints to industrial tribunals to six months, in recognition of the requirement to use the internal procedures first.
The provisions of Clause 23 and Clauses 24 and 25 will introduce new rights for servicemen and women to take complaints covering, respectively, race discrimination and equal pay to an industrial tribunal, again, after first using the internal procedures and within a similar deadline. Clauses 26 and 27 make similar provision in respect of other matters on which servicemen and women may be able to make complaints to industrial tribunals. Thus, whatever the statutory basis for the complaint, the arrangements for access to tribunals will be on a consistent footing, as the noble Lord, Lord Judd, said.
At present, as the noble Lord, Lord Judd, rightly said, cases of sex discrimination alone can be taken directly to industrial tribunals without use of internal redress procedures first. This direct access derived from the MoD's acceptance in 1991 that the EC equal treatment directive applied for most purposes to service personnel. The MoD's amendment to the Sex Discrimination Act 18 months ago brought the statute law up to date by removing from the Act the exemption for service personnel. As I made clear at Committee stage, it was always the intention that provisions in the Bill regarding the use of the internal procedures should be included in the Sex Discrimination Act. The Bill presents the first appropriate legislative opportunity to do so since the powers that were used last year to implement EU legislation, but removing the services exemption from the Sex Discrimination Act did not extend to making ancillary domestic changes.
The concept of the two-stage process is not entirely new. The requirement to use the service internal procedures was first set out in an amendment to the Employment Protection (Consolidation) Act 1978--now the Employment Rights Act of 1996--which was included in the Trade Union Reform and Employment Rights Act 1993. The 1993 amendment to the 1978 Act introduced a new section, Section 138A (now Section 192 of the 1996 Act), which required complaints by service personnel under that employment legislation to be submitted for consideration under the internal system before application could be made to an industrial tribunal. It also allowed a time limit for the submission of such complaints to industrial tribunals to be extended to six months, to allow for this. Although these provisions have not yet been brought into force, they serve to illustrate that the MoD's policy objective of requiring prior use of the internal redress system is of fairly longstanding.
I have reflected very carefully on the arguments put forward in Committee which questioned the need for service personnel to be treated differently from other employees in respect of access to industrial tribunals. However, I am sorry to tell the noble Lords opposite that I am unable to accept that it would be wise to bypass the services' own procedures for investigating complaints.
I believe that we must acknowledge that service in the Armed Forces just cannot be compared with any other employment. There are therefore very valid reasons for having a slightly different system for dealing with employment matters. I use the word "slightly" deliberately, because I think the noble Lord, Lord Judd, with all respect to him, doth protest too much. Servicemen and women who believe they have been discriminated against on grounds of race or sex will have the same right as any other person to apply to an industrial tribunal for an independent adjudication on their complaint. The only difference in service cases will be the requirement, first, to submit the case for consideration under the internal procedures.
The practical effect of this will be a slight delay before referral to the tribunal: at the most three months. However, I do not accept that this will weaken in any way the benefit of the right to present a case to a tribunal. I have heard arguments that this two-stage process for dealing with service cases will cause unnecessary distress to complainants because of the strain of having to argue their case twice over. It is also claimed that complainants will be at a disadvantage when subsequently presenting their cases to a tribunal, because their cases will be fully known to the MoD and they will not have equivalent knowledge of the case against them.
However, I would say that both those concerns are misconceived. The services internal system is designed to ensure that complaints are dealt with quickly and in a non-confrontational way. Its objective is to establish the facts quickly and, where any fault lies, to take disciplinary action where necessary: that is to nip in the bud any manifestation of racism, sexism or any form of inequality or injustice. In other words, the services system is essentially an investigative procedure, in contrast to the more adversarial nature of proceedings at industrial tribunal hearings. It will investigate the complaint being made rather than adjudicate between the parties. I think the really telling point is that the service investigations can begin immediately the complaint is made and, importantly, when all the personnel involved are still in post. Dates for industrial tribunal hearings necessarily take time to be listed.
I do not want to detain the House for too long but I think I ought to make some rather important points, picking up some of the comments made by the noble Lord, Lord Judd. These relate to the procedure itself. The noble Lord said that procedure can be stressful and difficult for certain individuals. It might help if I ran through this very briefly and that will, I hope, indicate why we favour it as we do. Under the service system, personnel are encouraged to make their complaints orally initially, but if it proves impossible to solve the problem right away and there is a need to involve higher authority, then they are asked to make a written submission. Unless the complainant voluntarily withdraws a complaint or redress is granted at the first level of consideration, it is passed on through the chain of command and ultimately to the appropriate service board of the Defence Council, if necessary. The complainant is keep informed either orally or in writing of the progress of the complaint at each level of consideration. Before a complaint is considered by the service board, if it is necessary to take it that far,
The board must in every instance decide whether or not to convene an oral hearing and any request for such a hearing from a complainant would naturally be given very careful consideration. If an oral hearing is held, the board must provide the opportunity for witnesses to be called and to be cross-examined. If there is to be no oral hearing, complainants are asked to submit their comments on the submission to the board in writing. The board's final decision, with reasons, is always conveyed to the complainant in writing. So if a complaint is subsequently referred to an industrial tribunal the complainant will be fully aware of all the evidence on which the board's decision had been reached. Against that background I would argue that the services internal system provides a more likely means of resolving complaints, particularly those on such sensitive issues as race or sex discrimination; and it will do so swiftly and in a non-confrontational manner--more so than does the industrial tribunal process. Those are the central reasons why I ask the House to reject the proposed amendments to Clauses 21 to 27.
Lord Judd: My Lords, once more I express my appreciation to the Minister for dealing very fully with the points I made. We are trading this word "disappointment" across the House. I think I understand why, because on the great matters of defence and the kind of services we want to see I am sure it would be impossible to find any significant difference between the Minister and myself. Therefore, we naturally feel disappointed when we enter areas in which we do not have the same degree of common understanding, and so what I say now is very much in that spirit.
In his courteous and full summing up the Minister did not in fact deal very convincingly with the issue. If a complainant in the armed services follows the internal procedure, he or she has to argue the case up through the chain of command in the knowledge that any of those people with whom that complainant may be confronted may at a later stage, if that complainant decides to go to a tribunal, come to the tribunal as witnesses. That is a difficult situation.
Secondly, I suggest that the Minister did not convincingly deal with the issue that, under the service procedure, it is not possible for a complainant to hear the evidence against a complaint and to cross-examine witnesses. That is a substantial difference in approach.
The other significant point which I have not deployed so far this evening but which I mentioned in Committee is that research being undertaken by a lieutenant-colonel in the Army and being financed, very much to its credit, by the Ministry of Defence, has convincingly established that the internal procedure is not working. The lieutenant-colonel himself observed that a significant number of people with complaints to make do not make them. Therefore, I suggest that the
Earl Howe: My Lords, I am grateful to the noble Lord for giving way. I have one brief comment on the study to which he has referred. I am aware that Lieutenant-Colonel Crawford, a defence fellow at Glasgow University, has recently completed his thesis on race, ethnicity and the Army. That paper has not yet been seen by Ministers. It is still being considered within the department and we are looking at it carefully. Obviously, we shall consider the recommendations with equal care.
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