Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I beg to move amendment No. 7, in clause 7, page 3, line 36, leave out ‘body’ and insert ‘person’.

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to take Government amendments Nos. 8 to 11.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Welcome to the Chair, Mrs. Anderson. It is always a pleasure to see you there.

This is a minor drafting amendment. Clause 7 limits the role of the Commission for Equality and Human Rights in Scotland, allowing the commission to take human rights action on devolved matters only with the consent of a “body” established by an Act of the Scottish Parliament. When the clause was drafted, it was anticipated that that body would be a Scottish human rights commission. However, a Bill introduced in the Scottish Parliament on 7 October will create a Scottish commissioner for human rights. The amendment merely updates the drafting to reflect the fact that the Scottish Parliament will create a post, not a body. It in no way changes the policy set out in the clause.

One effect of clause 7 will be that the Commission for Equality and Human Rights will not be able to institute or intervene in legal proceedings that relate to a matter that falls within the devolved competence of the Scottish Parliament without the proposed Scottish commissioner’s consent. To ensure that that works correctly, we expect there to be a memorandum of understanding between the CEHR and the Scottish commissioner. Where the CEHR obtains the Scottish commissioner’s consent to institute or intervene in proceedings or judicial review on a devolved matter, clause 30(3) will enable the commission to rely on convention rights in the proceedings without having to obtain a separate consent from the Scottish commissioner.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I echo the Minister’s words in welcoming you to the chair, Mrs. Anderson. I am sure that the entire Committee will enjoy working under your chairmanship.

We discussed the effect of devolution this morning. I see why the amendment is necessary. Not as shadow Minister for Women and Equality but in my other capacity as shadow Secretary of State for Scotland, I frequently deal with regulations in Committee that, as a result of consideration of Acts of the Scottish   Parliament, amend primary legislation. Once again, it is good to see that the Government are up to speed with what the Scottish Parliament has done, and the amendments should be made before the Bill becomes law. That makes for much better and neater legislation. I would much rather deal with the amendment now than under a separate statutory instrument in Committee. I support the Government’s amendment.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I beg to move amendment No. 66, in clause 7, page 3, line 37, at end insert

‘unless the matter is one of a general principle, which applies to the whole of the United Kingdom.’.

Again, we are speaking about humans rights in Scotland. I want to ensure that the Bill is consistent in all that it enables and puts into effect. If we are talking about equality and everyone having the same rights, as indeed they should, matters dealt with in Scotland should be dealt with in the same way as in the rest of the United Kingdom. Conversely, matters dealt with in the rest of the United Kingdom should be dealt with in the same way as they are dealt with in Scotland.

The commission may not have the right to take action in relation to a matter because the Scottish Parliament has legislative competence to enable a body to take such action. The matter could be an issue of principle. Some matters that will arise under the Bill are likely to be issues of principle. The sort of action that we envisage will be class actions where a general matter has gone wrong in discriminatory ways. The matter that might be brought forward for consideration might be used as an example in order that there should be a legal decision to create a precedent, which would then be informative for everyone else who might bring a similar action.

If an issue arose in Scotland, it should still be dealt with in a United Kingdom context if it is a matter of principle that relates to the whole of the UK, as is perfectly likely. We can all envisage that happening. I do not want to see separate bodies of law or separate conventions building out of the Bill that distinguish between Scotland and the rest of the UK, or indeed between Wales and England, or in any other way. If the intent of the Bill is to achieve equality, it should be at every strata. While I have every respect for the Scottish Parliament and all its Acts and enactments, and while there is nothing wrong with the Scottish Parliament having legislative competence where appropriate, it would be quite wrong if clause 7(1) limited the Bill’s ability to achieve what it otherwise might have achieved by restricting what it could do.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Human rights as a subject are neither reserved nor devolved. As they touch on almost every area of Government, it is necessary instead to consider whether the context in which they are operating is reserved or devolved. It is that split, awkward though it is, that clause 7 seeks to respect. The establishment of both the CEHR and a Scottish commissioner for human rights provides an unparalleled opportunity for the promotion of human rights. However, it is important that nothing gets lost between our   commission and the Scottish commissioner and that the two bodies work together to ensure that they fulfil their respective remits as efficiently as possible.

To that end, clause 9(4) provides that, where it would be advantageous to consider a matter relating to England, Wales and Scotland in one place, the CEHR will be able to do so with the consent of the Scottish commissioner in relation to any devolved matters. That provides a sensible practical mechanism to allow the CEHR to consider devolved human rights issues in Scotland alongside similar issues in England and Wales, while minimising the risk of friction or of confusing differences of approach arising between the CEHR and the Scottish commissioner. We expect that the CEHR will conclude a memorandum of understanding with the Scottish commissioner, to ensure that that arrangement works effectively.

Clause 18 provides the CEHR with a wide power to

“co-operate with persons interested in human rights within the United Kingdom or elsewhere”

in fulfilling its human rights duties. That will, for example, allow the CEHR to work with the proposed Scottish commissioner and the Northern Ireland Human Rights Commission on a matter relating to the whole of the United Kingdom. It is important that all the bodies in the UK tasked with promoting the protection of human rights work together effectively, and I am confident that the Bill provides a sensible and effective means of allowing them to do so. I hope that that reassures the hon. Lady and that she is willing to withdraw the amendment.

James Brokenshire (Hornchurch, Conservative)

I, too, welcome you to the Chair, Mrs. Anderson. I hear what the Minister has said in connection with devolved powers. She referred to clause 9(4).

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I have had it clarified that there was an error in my brief. It should have referred to clause 7(4). I hope that that helps.

James Brokenshire (Hornchurch, Conservative)

I am grateful to the Minister for that clarification, because I could not quite see the relevance of clause 9(4). She has now referred to clause 7(4). In other words, the prior consent of the Scottish commissioner would be needed as regards taking the action described. I suppose that the issue is clarification, which is why the amendment was tabled. There may well be a requirement for general principles to be adopted in terms of common standards on human rights, as my hon. Friend the Member for Epping Forest (Mrs. Laing) highlighted. The issue boils down to whether it is better to construct that by means of a formal concordat between the Scottish commissioner and the CEHR with regard to common ground and common issues and ensuring that we have a clear view and clear standards in relation to human rights and the approach that will be taken.

One issue that the measure obviously touches on is human rights. Without my wishing to pre-empt a debate on clause 9, there is some scope with regard to what is meant by human rights, given that the definition to which we are referring talks about the convention rights and “other human rights”. There may be different views as to what “other human   rights” are in Scotland, as compared with the body of law that might be relevant in the rest of the United Kingdom.

The amendment is designed to prescribe a particular way of dealing with matters to make it clear that, if there are issues of general principle for the whole UK, they should be reserved for the CEHR rather than being devolved. I hope that such a measure would be limited in its use and scope. The emphasis on matters of general principle highlights the approach that we take in tabling the amendment. Because of the uncertainty about the definition of human rights, it seems sensible to prescribe how to deal with issues of principle in respect of which a general approach is required for the whole UK. That is best done by means of a specific requirement rather than by a concordat or an arrangement under which an agreement would have to be reached between the Scottish commissioner and the commission, as stipulated in clause 7(4). It is important to be clear where rights, duties and responsibilities lie. Fundamental issues of general importance should be addressed by the commission, which can take a broad view of their impact on the UK as a whole, rather than, necessarily, by the Scottish commissioner.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I hope to give more explanation and clarification. It is important to remember that nothing in this Bill can change the devolution settlement. As the hon. Member for Epping Forest, who has a great deal more experience in that area than I do, has said, we have undertaken a great deal of negotiation and looked at much legislation to ensure that that does not happen.

We are trying to ensure that the CEHR and the proposed Scottish commissioner will be able to work together when appropriate. I would not want anything to appear in the Bill that enabled any matter, whether devolved or arising in the rest of Britain, to be undertaken or investigated by the commission without appropriate consultation. It could be that matters of principle relating to devolved matters have wider implications for England and Wales. However, it is appropriate for the Scottish commissioner to consider them and to share the information subsequently.

We believe that the proposed consent mechanism and memorandum of understanding are the right way to achieve that, as we have set out in clause 7(4). Therefore, we wish to proceed that way, rather than allowing a situation to arise in which the commission could do something that affected a devolved matter without having obtained the consent of the Scottish commissioner.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I accept the Minister’s explanation and am pleased to have had the chance to air the argument, because I continue to be concerned that devolution issues should be taken into consideration and that we should have the necessary continuity of effect throughout the whole UK. The Minister has explained the situation very well and has answered the points   made by my hon. Friend the Member for Hornchurch (James Brokenshire). Therefore, I beg to ask leave to withdraw the amendment.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

On a general point in relation to the way in which the Bill will work in Scotland. I have discovered that the Government have today tabled a motion to be dealt with in the other place, amending the Scotland Act 1998 quite rightly to include the Commission for Equality and Human Rights under the definition of reserved bodies, as opposed to devolved bodies.

My question relates to the timing of the secondary legislation’s introduction in the House of Lords. I do not understand how it can happen today, when the secondary legislation becomes necessary as a consequence of the passage of this Bill. We have not passed this Bill. Since the other place has already dealt with the Bill, it could be that the other place has to deal with the consequential issues arising from its passing of the Bill.

However, the Bill is not an Act of Parliament, it is not law and it is hard to understand how the other place can consider secondary legislation to amend the Scotland Act 1998 as a consequence of the Equality Act, when the Equality Act is not an Act but a Bill.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I shall make a few general comments about the clause and then respond to the hon. Lady.

Clause 7 limits the role of the Commission for Equality and Human Rights in relation to human rights issues in Scotland in order to ensure a workable division of functions between the commission and the Scottish commissioner for human rights. The Bill to establish the post of the Scottish commissioner is before the Scottish Parliament, and there is no direct reference to the Scottish commissioner, as it does not exist yet. That is perhaps an interesting point, given the hon. Lady’s question.

Under the Scotland Act 1998, human rights as a subject is neither devolved nor reserved; instead, whether a particular human rights issue is devolved or reserved depends upon the nature of the service giving rise to it. We take it as axiomatic that the commission should not create anomalies in the devolution settlement. However, we are aware that there may be occasions when the interface between the two bodies   might be a little untidy. The essential point is that the commission will not normally be able to take action under its human rights duties in a devolved matter without first gaining the consent of the Scottish commissioner.

In relation to the point made by the hon. Lady, my understanding is that once the Bill has received its Second Reading in this place, it is possible for the change that she mentioned to be made. However, I shall obtain greater clarity about that point, and write to her to ensure that we are clear about the situation.

The policy underlying the clause has been discussed with the Scottish Executive and the Scottish Ministers, and it should, we hope, result in good and effective working relationships.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I thank the Minister for her explanation. In retrospect, I am sure that she is right: once the Bill has received its Second Reading, it is in principle likely to become law. Understandably, the other place will have to start enacting secondary legislation as a result of the Bill. We all hope that it becomes law. The secondary legislation that is about to go through the House of Lords seems eminently sensible and, indeed, inevitable. I thank the Minister for that explanation.