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New Clause

Volume 226: debated on Wednesday 16 June 1993

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Lords amendment: No. 34— Restriction of publicity in cases involving sexual misconduct: industrial tribunals

(".—(1) Schedule 9 to the 1978 Art (regulations for industrial tribunals) shall be amended by the insertion in paragraph 1 of the following.

(2) After sub-paragraph (5) there shall be inserted—

"(5A) The regulations may include provision—

  • (a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall he so effected as to prevent the identification of any person affected by, or making, the allegation;
  • (b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.
  • In this sub-paragraph—

    "identifying matter", in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation;

    "restricted reporting order" means an order prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain;

    "sexual misconduct" means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed;

    "sexual offence" means any offence to which section 141A(2) of the Criminal Procedure (Scotland) Act 1975, section 4 of the Sexual Offences (Amendment) Act 1976 or the Sexual Offences (Amendment) Act 1992 applies (offences under the Sexual Offences Act 1956, the Sexual Offences (Scotland) Act 1976 and certain other enactments);

    and "written publication" and "relevant programme" have the same meaning as in that Act of 1992."

    (3) In sub-paragraph (6), after the word "send" there shall be inserted the words "(subject to any regulations under sub-paragraph (5A)(a))".

    (4) After sub-paragraph (7) there shall be inserted—

    "(8) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—

  • (a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
  • (b) in the case of publication in any other form, the person publishing the matter; and
  • (c) in the case of matter included in a relevant. Programme—
  • (i) any body corporate engaged in providing the service in which the programme is included; and
  • (ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
  • Expressions used in this sub-paragraph and in subparagraph (5A) above have the same meaning in this sub-paragraph as in that sub-paragraph.

    (9) Where a person is charged with an offence under sub-paragraph (8) it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.

    (10) Where an offence under sub-paragraph (8) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

  • (a) a director, manager, secretary or other similar officer of the body corporate, or
  • (b) a person purporting to act in any such capacity, he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.
  • (11) In relation to a body corporate whose affairs are managed by its members "director", in sub-paragraph (10), means a member of the body corporate."")

    I beg to move, That this House doth agree with the Lords in the said amendment.

    With this it will be convenient to discuss Lords amendments Nos. 35 and 44.

    Amendment No. 34 gives industrial tribunals discretionary powers to protect people from intrusive or offensive media reports when they are involved in cases which include allegations of sexual misconduct. The definition of sexual misconduct covers sexual offences, sexual harassment and other adverse conduct based on sex, or relating to the sex or sexual orientation of the person at whom the conduct is directed.

    The tribunals themselves sought such powers, and when the Department of Employment consulted interested organisations earlier this year, it was clear that there would be widespread support for such a move. The responses show that some potential applicants are deterred from bringing tribunal cases involving allegations of sexual harassment for fear of hostile and intrusive publicity. Many people find the experience of bringing a complaint which involves such allegations deeply distressing, and it is wrong that their distress should be enhanced by their fears of being identified against their will in salacious and incomplete reports of the case. Therefore, I think that hon. Members will agree that it is in the public interest that discretionary reporting restrictions should be available in such cases.

    The amendment falls into two halves. New paragraph 4A(a) covers the small number of cases which involve allegations constituting an indecent assault or more serious sexual offence. It gives industrial tribunals powers to remove permanently from decisions and any other documents available to the public any information which would identify any person making or affected by the allegations. Those powers are largely needed to avoid the risk of the tribunals themselves committing a technical breach of the Sexual Offences (Amendment) Act 1992. That Act, which applies in England and Wales, makes it a criminal offence to publish information which would identify the victim of such an offence without their consent for the rest of their life.

    New paragraph 4A(b) contains the substantive powers. It covers the potentially larger group of cases which involve allegations of sexual harassment or other sexual misconduct, as defined in the new clause. In cases which involve such allegations the amendment gives industrial tribunals discretionary powers to make restricted reporting orders. Such an order, once made, will prevent any reports of the case published or broadcast in Great Britain from including information which would identify anyone making or affected by those allegations. The order will not be made automatically, but only where the tribunal sees fit. It will lapse on promulgation of the tribunal's decision unless it is revoked earlier by the tribunal. Transgression of the order will be a criminal offence punishable by a fine not exceeding level 5 on the standard scale, currently £5,000.

    Amendment No. 35 gives the Employment Appeal Tribunal discretionary powers equivalent to those given to the industrial tribunals by amendment No. 34. The powers to be given to the EAT cover appeals in cases which involve allegations of sexual misconduct, where the proceedings are appeals against an industrial tribunal's decision or refusal to make a restricted reporting order, or against any interlocutory decision in a case where such an order had been made.

    In appeals in cases which involve allegations of an indecent assault or other more serious sexual offence, the amendment gives the EAT powers to remove information which might identify any person making or affected by those allegations permanently from decisions and any other documents which are available to the public. As in the case of amendment No. 34, those powers are largely needed to allow the EAT to avoid the risk of committing a technical breach of the Sexual Offences (Amendment) Act 1992.

    I hope that hon. Members from both sides of the House will join in the Government's strong condemnation of sexual harassment. The purpose of the amendments is to protect individuals in cases involving such allegations from offensive and intrusive reporting and to encourage potential applicants who might otherwise be deterred by the fear of such publicity to pursue their complaints.

    I congratulate the Minister on her appointment and wish her well. I hope that, in the course of her tenure, she will turn out to be a champion of women's rights at work. This amendment helps women at work, although I regret that so much else in the Bill does not.

    The Opposition welcome the amendment, which is very much in line with suggestions that we have made in the past. We also welcome the strengthening of its wording at the instigation of Baroness Lockwood. We are glad that the Government took her additional words into account.

    We also welcome the fact that there has been consultation and that the Government have listened to the various organisations that have made representations to' them. We would encourage such listening.

    We are fully aware that, in some cases of sexual harassment, harm may be caused to an innocent party by intrusive publicity. That is why we welcome the amendment, which allows reporting restrictions. I have one or two questions about it, however. We are somewhat concerned about how widely the new provisions may be interpreted. Of course, the Minister said that the reporting restrictions will not be granted automatically—that is important. Still, we must strike a balance between the need to ensure that such cases are understood by the general public and are not pursued behind closed doors, and the need to protect innocent parties.

    It can often be in the interests of the accused to avoid publicity altogether. We do not want to make that too easy. Although there have been many cases of which the reporting has been most intrusive, there have also been cases where reporting has raised awareness of the problem among employers, employees and the public. Some such cases have contributed to the problem being taken seriously, and we should all be pleased about that.

    I know that some people say that all publicity is good publicity. I do not share that view; nor do I share the view that all publicity is bad publicity. We should be aware of the gains that publicity can produce. If reporting the results of sexual harassment cases is restricted, it may become more difficult to persuade employers that the subject requires proper complaints procedures and preventive measures. When a complaint of sexual harassment has been upheld by a tribunal, press reports can be an important means of emphasising employers' responsibility to take action to prevent sexual harassment in the workplace. Although the names of the harasser and the victim are often not necessary, some reporting of the name of the employer and the workplace can be an effective method of alerting other employers to their responsibilities under the law.

    I should like the Minister to comment in more detail on these observations and to undertake to monitor how the provision works in practice, so that, if there is a danger that it is being interpreted too widely, the matter will be reviewed in future.

    9.15 pm

    With the leave of the House, Madam Deputy Speaker, I shall reply briefly to the points that have been made.

    I am very grateful to the hon. Member for Gateshead, East (Ms Quin) for her broadly supportive approach to the amendment. The Government are seeking to strike a balance. The hon. Lady made the valid point that publicity arising from sexual harassment cases draws the public's attention to the problem, deters employers from tolerating such activity and encourages them to ensure that they do not themselves become the subjects of such publicity. On the other hand, there will be no publicity at all if people do not bring complaints.

    We have to strike a balance between encouraging public examination of the problem and deterring people from taking action as a result of what may have been extremely distressing circumstances. When people are deterred, the perpetrator is not called to account and is left free to carry on with his conduct. I believe that that balance is ensured, first, by the discretionary nature of the power—I repeat that it is certainly not automatic—and, secondly, by the fact that the order will lapse on promulgation of the decision, at which point the facts of the case and of the determination will be made known.

    As in the case of the employment tribunals, in whose work we are interested although they are independent, we shall keep a close eye on the progress and effects of the legislation. I can certainly give the hon. Lady an undertaking that if this were ever interpreted as being automatic, we should want to put an end to such an interpretation.

    Question put and agreed to.

    Lords amendments Nos. 35, 36, 65, 79 and 37 agreed to.