Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I beg to move amendment No. 95, in clause 27, page 15, line 38, at end insert—

‘(h)the Human Rights Act 1998 (c. 42).’.

Welcome back to the Chair, Mrs. Anderson. The amendment would include the Human Rights Act 1998 in the list of regulations and Acts under which the commission may make arrangements for the provision of conciliation services for disputes. The Government intend, as the explanatory notes show, to allow the commission to make arrangements for the provision of conciliation services only for the equality enactments and specifically not under the Human Rights Act. The Government might show some give in the interests of human rights and conciliation. Perhaps the Minister can offer some conciliation in response to the amendment. She shakes her head, but I am sure that her response to my arguments will be conciliatory. Who knows, I may even withdraw the amendment if she can offer me some comfort.

The main point is that it has been questioned—particularly with regard to the view of the Joint Committee on Human Rights—whether, under this Bill and the previous one, the commission should allow legal assistance to be given in human rights-only cases. The Government have argued that that would not be right. The Joint Committee accepted that in its report published in the last Session, when I was not a member of it, and the Minister will note that I do not seek to make that point by way of an amendment. The Joint Committee’s view, given in its report on the previous Equality Bill, was that that was a quid pro quo and the general human rights duties of the commission might well be thought to extend to enabling conciliation to ensure that people understand, and can secure protection of, their human rights. For that reason, it seems to be in keeping with the general duties of the commission for it to be able to provide conciliation in such areas.

Given that the alternative to legal action is conciliation and that part of the commission’s role, as clause 9 states, is to

“promote understanding of the importance of human rights ... encourage good practice in relation to human rights ... promote awareness, understanding and protection of human rights, and ... encourage public authorities to comply with section 6 of the Human Rights Act 1998”,

it would seem that conciliation would naturally flow within that role, without breaking the Government’s rule that the commission should not aid individuals in specific legal action.

Will the Minister consider providing such a facility for the commission? It would be a more balanced approach than that in the Bill. I am not entirely clear about the Government’s arguments against giving the commission that power. Perhaps it is best if I wait to hear what they are and then seek to catch the Minister’s attention so that I can intervene and probe further, if necessary.

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

It is good to see you in the Chair again, Mrs. Anderson. I thank the hon. Gentleman for the amendment and will explain the scope of the commission’s power to arrange for the provision of conciliation services.

Conciliation is an important function of the commission. In an ideal world, litigation would be the last resort for equality proceedings. Disputes can often be settled through conciliation in less time, for less cost and with less disruption to the lives of the people involved. However, we believe that human rights proceedings should not fall within the scope of the commission’s conciliation work, for three main reasons.

First, the nature of proceedings under the Human Rights Act is that they are brought against a public authority, often an arm of government. They are usually brought by way of an application for judicial review by an individual or group of individuals, who must, of course, satisfy the victim test. The enactments specified in the clause, in relation to which the commission may arrange conciliation services, are civil proceedings in private law. Human rights proceedings, in contrast, are public law proceedings.

Such proceedings do not have the same absolute standard of legal conduct as found in the equality enactments. Instead, the court is asked to review the conduct, decision or policy of the public authority to assess whether it respects the framework of rights laid down by the Human Rights Act. It may also be asked to assess whether the public authority has acted in a way that is not irrational or unreasonable. Such a review could not appropriately be carried out in conciliation, especially when the parties are likely to be of unequal strength, as in the case of an individual and a public authority.

Secondly, it is good practice for public authorities to have procedures available whereby those who are unhappy with the authority’s conduct or decision may seek a review within the organisation. Hon. Members will be aware of other enactments that require complaints procedures and so on to be in place. That is not only good practice; the public authority can save the legal costs of fighting an action in court if it can, within the organisation, provide a suitable means by which a complainant can achieve redress. If public authorities do not put such procedures in place—the promotion of the procedures would fall within the   commission’s duty to promote good practice in relation to human rights—a further external conciliation procedure is likely to add little value.

Finally, that brings me back to our decision that the CEHR should not be asked to support litigation arising solely under the Human Rights Act 1998. We are concerned that a power to support human rights litigation could overload the commission, with the need to sift through many and varied applications for support.

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

I thank the Minister for giving way so that I can make my recurrent point again. She made the point herself that conciliation is usually a much less costly and disruptive method of settling a dispute than full court proceedings. Under the 1998 Act, the costs and number of court proceedings have escalated massively, thereby placing a burden not only on the public purse but generally, and putting much more strain on the court system. If clause 27 included the 1998 Act, as the Liberal Democrats, unusually, correctly suggest—it is a great pleasure to support one of their amendments for once—it would have the very good effect of saving not only public money but other money that might be spent on litigation.

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

I thank the hon. Lady for her intervention and refer her back to what I was saying: the commission will be in a position to promote good practice in relation to human rights, and part of that good practice is that public authorities should have complaints procedures and so on. As I said, many organisations are required to do so under legislation. My background is in social services, so I am aware that the Children Act 1989 brought in complaints procedures in that regard. Complaints procedures are associated with other enactments. There are expectations that public bodies will have mechanisms to enable concerns and conciliation issues to be dealt with by the organisations themselves.

There is a concern about cost, and I am sure that the hon. Lady will be pleased to support that aspect of my argument. If the authorities can deal with the issue, that will not only save a cost to the commission; I genuinely worry that if human rights issues were brought to the commission in the way suggested, there could be a problem with the amount of work involved. If a concern can be resolved within the public authority, that is helpful to the individual who raised it. Furthermore, because the concern is dealt with in-house, it is much more likely to have an effect on the policies and procedures of that organisation and, we hope, avoid other users of the services, whatever they may be, experiencing the situation that caused the original individual to have concern about their human rights in the first place.

Under the amendment, the wide range of human rights proceedings that could be subject to conciliation would make the coherent and cost-efficient provision of such a service difficult. As hon. Members know, there is a huge range of public bodies. Whereas a health trust or local authority, for example, dealing with complaints about its service provision, has   expertise and detailed knowledge of its policies and procedures, the commission, if we allowed it to provide the suggested conciliation service, could be dealing with a range of issues on which it was neither particularly expert nor able helpfully to suggest resolutions. The commission’s resources are limited, as the hon. Lady and the hon. Member for Oxford, West and Abingdon (Dr. Harris) know, and I am sure that we will have more discussion on that. We do not believe that the proposal in the amendment would offer good value for money.

I should like to reaffirm my strong support for conciliation as a way of reducing the need for disruptive and expensive litigation. Nevertheless, the nature of human rights proceedings means that they would not be suitable for inclusion in the scope of the commission’s conciliation work. I look forward to a conciliatory gesture from the hon. Gentleman in withdrawing his amendment.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am genuinely grateful to the Minister for her explanation. I see her point about the need for public authorities not to be lulled into not making provision for conciliation services because somebody will do it for them. However, that argument is limited because public authorities ought to do it regardless of whether help with conciliation is being offered. It is worth reading what the Joint Committee on Human Rights said in its 16th report of 2004-05 in response to the sort of arguments that the Minister has just made. It concluded that an ability to provide conciliation is consistent with the commission’s duty under clause 9(1) to

“promote understanding of the importance of human rights.”

It went on:

“If the Government is able to provide reassurance that the Bill overall reflects its own intention”—

from the White Paper, I think—

“that the Commission will provide ‘tools and concepts to help find solutions in areas where rights may conflict’, we would regard the restrictions related to conciliation in clause 29 with more equanimity. We do consider, however, that, should the restriction be lifted by order on legal assistance in mixed cases when the equality element has fallen away, the Commission should be able to provide formal conciliation services in such cases, and the Bill should accordingly be amended to provide for this.”

I did not deal with that matter in my previous remarks, and it is not clear whether it is best dealt with here or in the next clause.

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

Such tools and concepts are exactly the sort of issue that the commission may want to consider in promoting conciliation. I am happy to consider the extent to which the duties in this clause and the Bill generally will allow the commission to do more than that, and I shall write to the hon. Gentleman about that. We shall come to the matter of cases that are jointly funded.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am grateful to the Minister for her response on the commission’s ability to promote conciliation as one of the

“tools and concepts ... where rights may conflict.”

The reference for that is paragraph 6.5 of the Department of Trade and Industry’s document, “Fairness For All: A New Commission for Equality and Human Rights”.

On the other question of actions, cases or claims involving equality and human rights, the Minister will know from debates in the House of Lords that the next clause deals with whether a human rights claim can continue when a joint claim under equality enactments and human rights has been started and the commission is involved. I am happy, with your permission, Mrs. Anderson, to deal with that under this clause; I flag it up now because it may be helpful.

If the Lord Chancellor gives permission for that help to continue, the question is whether it will extend to conciliation if that is the alternative to litigation. That would be logical, and I will make the point more clearly in our debate on the next clause.

In respect of what the Minister said about having another look at how the commission can best play this important role, in the spirit of conciliation I am happy to beg to ask leave to withdraw the amendment.