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

I beg to move amendment No. 83, in clause 28, page 17, line 6, after ‘assistance’, insert

‘including, but not limited to, meeting the costs of any other party to any legal proceedings in the event that the individual assisted is not successful in his claim’.

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to discuss the following amendments:

No. 92, in clause 28, page 17, leave out lines 15 to 26.

No. 93, in clause 28, page 17, line 33, leave out ‘(6) or’.

No. 94, in clause 28, page 17, line 34, leave out from ‘description’ to ‘or’ in line 36.

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

Amendment No. 83 is similar in its effect to the amendments to clause 17, under which we also discussed amendments to clauses 28 and 29. This amendment is more specific in amending the part of clause 28(3) which deals with legal assistance.

The reason for the amendment is that someone or some body could have received assistance to bring a case under the legislation; if the case was thrown out the person against whom the case was brought may have incurred very considerable costs, not only in legal advice but possibly in other practical ways. That person or body, having succeeded in defending the claim brought against them, would then be in a very much weaker financial position, which is simply not fair.

The Bill aims to achieve fairness and equality in all that it affects. Therefore, as I said in our discussion on clause 17, as a small business, charity or other body without the resources enabling it easily to employ legal advice may be affected, it is only fair for the commission to have the power that we suggest in the amendment.

This morning, the Minister accepted the principle that I raised in relation to clauses 17, 28 and 29, and I accepted that the word “person” means not just a human individual but a legal persona. However, if we accept that a case may be brought by or against a legal persona other than a person, that persona—I am running out of words because I am trying to distinguish between person, legal person and body, and having already conceded the point that we do not need the words “body” or “organisation”, it would be inconsistent of me to use those words.

James Brokenshire (Hornchurch, Conservative)

Will my hon. Friend give way?

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

Yes!

James Brokenshire (Hornchurch, Conservative)

If an individual enters into litigation, suing a small business or sole trader, and the case is not found, in normal circumstances the court   would award costs against the unsuccessful party. If an individual who was unsuccessful in their claim could not pay those costs, the small business or individual trader would have to meet them. Does my hon. Friend therefore agree that it would seem fair that if the commission supports an individual’s case financially, it should also incur the risk if the case is unsuccessful?

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

My hon. Friend is absolutely right and puts the matter succinctly. I thank him for assisting me in my vocabulary. That is precisely the point. The situation as it currently stands is unfair, because someone can have a case brought against them, succeed in defending it, and then find that they cannot recover the costs, particularly if the person who brought the case has no money, which is often the case if it is an individual rather than a corporate body. It is therefore necessary that the words that we suggest in the amendment be added to the clause.

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

Amendments Nos. 92 to 94, which I tabled, open up the question that was touched on during the debate on the previous clause and seek to remove subsections (5)(b) and (6) and references to subsection (6) in subsection (8).

The Committee will be aware of concern that in legal proceedings that have an equality enactment component and a Human Rights Act 1998 component, the commission can, under this clause, give assistance to the action by virtue of the equality component. The question therefore arises as to what happens when, as is stated in subsection (5)(b)

“the proceedings cease to relate to a provision of the equality enactments”.

The same subsection states specifically that

“assistance may not be continued under subsection (1) in respect of the proceedings (except in so far as it is permitted by virtue of subsection (6) or (7)).”

Subsection (6) relates to the discretion of the Lord Chancellor, who may by order disapply the subsection that I have just read out and enable the commission to continue to give assistance under subsection (1) in legal proceedings which:

“(a) when instituted, related (wholly or partly) to a provision of the equality enactments,

(b) have ceased to relate to the provision of the equality enactments, and

(c) relate (wholly or partly) to any of the Convention rights within the meaning given by section 1 of the Human Rights Act 1998 (c. 42).”

That looks like a compromise between not allowing the assistance to be given and providing for discretion. The intention of the amendments that I have tabled, even if they are not perfect, is to seek to persuade the Government to move from that position and say that, generally speaking, it will be possible for the commission to continue to provide assistance, as long as it sees that there is good cause to do so. That matter has been subject to the views of the Joint Committee on Human Rights, which, in its 16th report of the 2004-05 session, the only published report on the Equality Bill—and that refers to the previous Bill—had something to say about it.

The Joint Committee said, in paragraph 20, that it recognised that

“The Government has accepted to some degree our argument that the CEHR should be able to continue to support ‘mixed’ cases ... when equality elements have fallen away.”

It goes on to mention the power that the Lord Chancellor had in that respect, saying:

“We accept the principle as a reasonable compromise in relation to mixed cases but invite the Government”—

as I am doing now—

“to reconsider the limitations in the ... clause 30.”

I wonder whether the Government would be willing to do so, since they have come some way with regard to the provision on the Lord Chancellor’s discretion. If proceedings have been initiated and the commission still feels that there is value in pursuing the case, even though the equality components have fallen away, it should not be at the discretion of the Lord Chancellor, or anyone else, as to whether it can continue to provide support. In those circumstances, it is not clear from the phrasing of the Bill that conciliation services might still be offered in those cases. We dealt with that before.

It might be sensible, once the equality provision has fallen away, for there to be some way in which the commission can, given that it is already involved in a legal case, help move away from legal action towards a conciliation procedure. The Minister may wish to consider whether similar powers should be available to the commission to provide conciliation in respect of Human Rights Act cases, even where the equality enactment issues have fallen away. It would unnecessarily tie the commission’s hands to say that the Lord Chancellor might let it continue on the litigation path, but the drafting of clause 27 is so strict that it would not allow it to move into a conciliation process in which it was directly assisting.

Janet Anderson (Rossendale & Darwen, Labour)

Order. I remind the hon. Gentleman that we are discussing clause 28 and we have already dealt with conciliation. He seems to be addressing his remarks to clause 27. If he could restrict them to clause 28, I would be grateful.

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

I shall seek to do so. I said in discussion that, to avoid a stand part debate on clause 27, I would seek carefully, within order, to link the matter at hand with the amendments to which I am speaking now. Perhaps I should deal with that on the stand part debate on clause 28. I think that I have made the case and I do not need to repeat it.

I am sorry if I was not wholly in order. However, I hope that it is in order for the Minister to say whether, in cases where, under clause 28, the equality enactments have fallen away and the commission is, by virtue of subsections (5)(b) and (6), still involved, it will be possible for it to use conciliation services as an alternative, given that it is already involved in giving legal assistance. I hope that the Minister will respond to that.

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

There is a lot of note passing, in order that I might respond to the hon. Gentleman’s points.

I will deal first with amendment No. 83, which, as the hon. Member for Epping Forest (Mrs. Laing) set out, seeks to illustrate by example the provision in clause 28, which provides for the commission to provide legal assistance to individual victims of discrimination. Specifically, subsection (3)(d) says that the commission may provide or arrange any other form of assistance. The amendment seeks to add to that provision

“including but not limited to meeting the costs of any other party to any legal proceedings in the event that the individual assisted is not successful in his claim”,

specifying that the commission may be required to meet the other party’s costs in proceedings where the litigant it was supporting was unsuccessful.

If costs were ordered against a litigant supported by the commission, it would be reasonable for the commission to be liable. That is certainly the case with legal aid support. However, I consider the amendment unnecessary. The point of subsection (3)(d) is to provide for any form of assistance. By specifically listing what those forms of assistance may be, there is an expectation that the list may be exhaustive. That is not a road down which we want to go. Therefore, we prefer the drafting to remain open.

The matter of costs awarded against an individual assisted by the Commission for Equality and Human Rights will be covered in the agreement on assistance reached between the commission and the individual concerned. In view of that, I hope that the hon. Lady will be content to withdraw amendment No. 83.

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

I accept the Minister’s explanation. Again, I wanted to have it put on the record that the Government’s intention, and our intention in passing the legislation, is to ensure that small businesses, charities and other such small bodies that lack access to considerable funds will not be disadvantaged by anything in the legislation, especially if they have done nothing wrong and succeeded in being proved right in the case brought.

My second recurring theme is that we must not—

Janet Anderson (Rossendale & Darwen, Labour)

Order. May I ask whether this is an intervention or a speech? Can the hon. Lady restrict her remarks?

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

Thank you, Mrs. Anderson. I thought it was a speech.

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

I thought it was an intervention.

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

If it is an intervention, I beg your pardon, Mrs. Anderson, as it is far too long. I can finish the point at the end of the Minister’s remarks.

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

I think the confusion has probably arisen because I am dealing with two slightly different areas concerning the amendments. If I may deal with the amendments from the hon. Member for Oxford, West and Abingdon (Dr. Harris), I will then be happy to hear the hon. Lady’s further comments.

The issues raised by amendments Nos. 92 to 94 are that the commission may support cases that rely on both the equality enactments and other matters, such as discrimination and unfair dismissal, or discrimination and human rights. These are termed combined cases.

The commission can, however, only support combined cases while they relate to the equality enactments. If those enactments and the arguments for them fall away, the commission must stop supporting the case. If continued support were allowed, it could increase the number of cases seeking support from the commission—especially cases with limited or spurious connections to the equality enactments. More resources would thus be needed to weed those cases out, which could dilute the focus of the commission’s work in supporting equality enactment cases, where it can add real value.

The commission should not support cases solely under the Human Rights Act 1998. Public funding is already available for such cases. To duplicate that would cause unnecessary confusion. Human rights cases can cover a wide range of areas, and would create a problem of sifting and selection for the commission.

As the hon. Member for Oxford, West and Abingdon acknowledged, we have provided an order-making power to permit the commission to continue supporting a combined equality and human rights case should the equality arguments fall away. We have no way of knowing how many cases that would catch, and do not want to legislate in a vacuum. Once the commission is up and running, we will be able to talk to it and to take a view on whether an order should be made under subsection (6). Such orders would not be made on a case-by-case basis, but would apply either to all equality and human rights combined cases or to a particular class of case. That is a positive and pragmatic approach to the known unknowns, allowing us to make a decision when we have the evidence to do so.

The hon. Gentleman read out a recommendation from the report of the Joint Committee on Human Rights. The Committee’s recommendations were considered carefully and the clause was amended accordingly on Report in the House of Lords. The order-making power has been vested in the Lord Chancellor because he is responsible for the operation of the legal system, including providing proper support for cases and for human rights. If it is activated, the power will significantly change the CEHR’s support for human rights cases, so we consider that that is appropriate.

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

The Minister is right that a change was made following the JCHR report in respect of disapplying the strict criterion that article 7(1) in schedule 1 of the Human Rights Act 1998 must apply. Therefore, I recognise that, even though there was no direct Government response to that report, the response was in the change that was made. That is progress in the direction that I favour.

Vera Baird (PPS (Rt Hon Charles Clarke, Secretary of State), Home Office; Redcar, Labour)

There are two things on which it would be helpful to have advice. First, at what point does an equalities point fall away? Let us suppose that somebody brings a joint case and the judge hears the equalities element first and rules against it, but the person has every intention of appealing against that ruling. Is it still a live issue? Can the commission carry on funding the rest of the case, including the appeal, or should the case be stopped there and then and the Lord Chancellor’s help be sought?

That links to my second point which is, what would happen if, as is not impossible, a judge chose to take the two strands separately—equality first, then human rights—and ruled against the equality part? Is it expected that the case would stop while the applicant applied for legal aid? That would be very inconvenient for the High Court. I do not expect the Minister to have the answers at her fingertips, but the questions occurred to me as we worried our way through the point.

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

I am grateful to my hon. and learned Friend for raising those issues. I expected her to do so because of her extensive experience in the legal system, and she is right to say that I do not have all the answers at my fingertips. However, I am assured that, if an equality matter were to fall away, that would happen at an appropriate point in proceedings. It would not happen, say, when a court appearance was due to take place the following day but, as she suggests, when a hearing had happened and there was the possibility of an appeal. However, she raises some interesting and important points about whether such an appeal should continue. In order to make matters absolutely clear, I shall write to her, with copies to every member of the Committee, on that point and on the issue of judges who consider different aspects of a case separately.

The hon. Member for Oxford, West and Abingdon mentioned conciliation. Clause 28(3) allows for the provision not only of legal advice and representation, but of

“facilities for the settlement of a dispute”.

If the Lord Chancellor made an order under subsection (6), it could allow the continued provision of such dispute resolution facilities in respect of a case in which only human rights points remained. Given my comments on the suitability of human rights points for conciliation, however, the commission would need to be sure of the suitability of any facilities that it wished to provide. I trust that that answers the hon. Gentleman’s points and that he and the hon. Member for Epping Forest will not press their amendments.

Mrs. Laingrose—

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

May I delay the hon. Lady for a moment? I am grateful to the Minister for drawing my attention to clause 28(3) and I shall certainly go away and think about what she said.

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

I shall make only a very short speech, having wrongly made a very long intervention during the Minister’s remarks. I accept her explanation of why amendment No. 83 is unnecessary and I am   pleased to have on record the fact that the Government do not intend to disadvantage small businesses and small charities, which do not have much money. The issue is important because, if the Government did that, the good legislation that we are passing would get a bad reputation. That would not help matters and the Bill would backfire. I thank the Minister for her explanation and for putting that point on record. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 12, in clause 28, page 18, line 1, after ‘sex’ insert ‘(including reassignment of gender)’.

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to discuss Government amendment No. 13.

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

The Government have tabled the amendments to clarify the provisions of subsection (11)(a) so let me set out the context and the effect of the amendments.

Subsections (11) and (12) enable the commission to support proceedings alleging that domestic legislation is incompatible with EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Without them, the commission would be able to provide assistance only where the proceedings related wholly or in part to one or more of the equality enactments. Those enactments are defined in clause 33 and include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976.

On Third Reading in the other place, we tabled amendments to introduce subsections (11) and (12) and to ensure that the new commission did not have fewer powers available to it than the existing commissions. We did that because case law had determined that the Equal Opportunities Commission had the powers set out in those subsections in respect of gender. Hon. Members will note that that theme runs throughout the Bill and that we are introducing provisions to enable the new body to continue the work of the existing commissions.

When we introduced subsections (11) and (12), we considered that, as a result of case law, gender reassignment was included in the term “sex”. It was always our policy intention to capture gender reassignment in the list of community law in subsection (11)(a). However, we have decided to place our policy intention beyond doubt by making express provision for gender reassignment. Amendment No. 12 achieves that.

Similarly, I have tabled amendment No. 13 for the purposes of clarification. Concerns were raised in the other place that making express reference in subsection (11)(a) to

“equality of opportunity between men and women”

when there is no mention of race implied that we attached less importance to community law provisions relating to equality of opportunity for race. That was never our intention. We made an explicit reference to equality of opportunity between men and women in   order to ensure that we properly reflected the specific elements of European law that deal with such matters, as provided for in articles 2, 3 and 141 of the EC treaty and in the various directives that concern equal pay and equal treatment in employment and for occupational social security.

Although equal treatment is mentioned in the race directive, it is not a legally distinct concept from discrimination based on racial or ethnic origin, which is the legal basis for the race directive, as set out in article 13. We therefore do not think it appropriate to include it.

On further reflection, we are persuaded that it is not legally necessary to make express reference to equality of opportunity based on sex in order for the clause to cover the sex equality provisions under articles 2,3 and 141 of the EC treaty and in the associated directives already mentioned. Parliamentary counsel has advised us that there is no demarcation in Community law between discrimination-based provisions and equality-based provisions. Therefore, the reference in subsection (11) to discrimination grounds is sufficient to embrace Community provisions on equality.

The reference to sex in subsection (11)(a) therefore covers equality of opportunity and equal treatment, which includes equal pay and so on. Consequently, we see no need for an express provision on equality of opportunity between men and women in the clause. Government amendment No. 13 therefore proposes removing it.

I trust that I have made the purpose of the amendments clear.