In speaking to Amendment No. 1, I shall speak also to the other amendments in the group—that is, Amendments Nos. 2, 4 and 5, 12 to 18, 34 to 37 and 39 to 43. All the amendments are in the names of my noble friend Lord Lester of Herne Hill and, with the exception of Amendment No. 2, of the noble Baroness, Lady Prashar. Amendments Nos. 1 and 2 are in the name of the noble Baroness, Lady Howe of Idlicote, as well. They are all amendments to Schedule 1 which covers the constitution for the proposed Commission for Equality and Human Rights. Their aim is to make the commission as independent of government as is possible.
Under the Bill, the commission is to be a non-departmental public body, as are the existing commissions which it is to replace. This means that the commission will be a separate legal entity. It will not be part of the Home Office, nor will it, its members or its employees be servants or agents of the Crown. But they will be under the control of the Home Secretary in many respects, and answerable to him.
For example, the Home Secretary will appoint the chair and the members of the commission. The Home Secretary may remove a member of the commission who, in his opinion, is unable, unfit or unwilling to perform their functions. The Home Secretary must approve the appointment by the commission of its chief executive. The Home Secretary must determine the pay and allowances of commissioners. The Home Secretary must decide—subject, in practice, to Treasury approval—the funding of the commission. I believe that this leaves the commission with insufficient independence.
The case has been made very strongly by the Joint Committee on Human Rights in its report on the proposals for the commission, as set out in the Joint Committee's Sixteenth Report of Session 2003–04. I shall read an extract from that report which sets out its case very precisely. Paragraphs 45 to 47 state:
"The time has come for the Government to recognise that there is a class of public bodies which have a distinctive constitutional role, and that these need to be designed with this special status in mind. It is not sufficient to pick the NDPB model off the shelf and apply it to every new public institution.
"There is an emerging, but rather unacknowledged group of these special bodies. They comprise at present the Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission. Each does have a distinctive (though slightly different) accountability structure . . .
"The relevant shared characteristics of these bodies is that they are established as part of the constitutional machinery, supplementary to Parliament, to act as a check on abuse of executive power. It is inappropriate, therefore, for them to be beholden to Ministers in any way. So far as they are to be held accountable of their actions, and for their use of public money, it is the proper task of Parliament to ensure this. They should not, however, be creatures of Parliament. The basic principles for the design of independent national institutions supporting democracy are that they should enjoy— statutory guarantees of independence from both the executive and Parliament; a system of funding independent of direct ministerial control; independent staffing arrangements; statutory involvement of a parliamentary body in approving and overseeing its budget and strategic plan; parliamentary involvement in key appointments; direct reporting to parliament".
The principles set out in the report of the Joint Committee are absolutely right. Of course, many non-departmental public bodies are set up to advise on, or to implement, government policy. The status of an NDPB is obviously appropriate for bodies in those categories.
This commission, however, will from time to time have to stand up to the Government and challenge them. That may amount to only a small proportion of the matters handled by the commission, but they will be particularly important matters. It is therefore essential that the commission should be, and be seen to be, independent of ministerial control.
I shall explain how these amendments achieve this. They are based to a considerable extent on the constitution of the Electoral Commission, set up under the Political Parties, Elections and Referendums Act 2000. Amendment No. 1 would remove the power of the Home Secretary to appoint commissioners. Amendment No. 2 sets out what is called the appointments and oversight committee, which I shall refer to as the AOC. The AOC should be a small body. Our amendment proposes that it should have only three members: one of them appointed by the Prime Minister after wide consultation with the leaders of political parties in Great Britain, not including the Northern Ireland parties because the Bill does not extend to Northern Ireland; ex officio the Chair of the Joint Committee on Human Rights; and the Chair of the Judicial Appointments Commission. We put forward this composition of the AOC as a matter of debate, but it is very much open to alternative suggestions. We may well wish to reconsider exactly what the composition will be. We understand that the noble Baroness, Lady Prashar, was unhappy with the proposals for composition, which is why she has not put her name to this amendment.
The AOC will make recommendations to the Crown for the appointment of members and the chair of the Commission for Equality and Human Rights. It is proposed also that the AOC should make an annual report to Parliament. Amendments Nos. 4, 5 and 12 are consequential.
Amendment No. 13 would ensure that the commissioner could be removed from office only by an address from both Houses of Parliament following a report from the AOC. This is based quite closely on provisions for removal of members of the Electoral Commission under the Political Parties, Elections and Referendums Act 2000, except that under that Act the address is required only from the House of Commons. That is appropriate for a committee concerned with elections—in particular elections to the other House—but is not appropriate for the Commission for Equality and Human Rights. We believe that the address under the Bill should come from both Houses and not from just one.
Amendment No. 14 is consequential. Amendments Nos. 15 and 16 remove the need for the Home Secretary to approve the appointment of the chief executive of the commission or to approve arrangements for the appointment of other staff. Amendments Nos. 17 and 18 deal with the appointment and removal of investigating commissioners. Amendment No. 34 provides for the commission itself to lay its annual report before Parliament instead of sending it to the Home Secretary to be laid before Parliament by him.
On the question of funding, Amendments Nos. 35 to 37 and 39 to 41 transfer responsibility for determining the pay, allowances, pensions and compensation for commissioners or members of advisory bodies created under the Bill from the Home Secretary to the AOC.
Finally, Amendments Nos. 42 and 43, which are unfortunately lengthy, are taken more or less directly from provisions in Schedule 1 to the Political Parties, Elections and Referendums Act 2000. These amendments deal with the provision of funds, the accounting for those funds and audit. On further thought, it may be appropriate that we have a larger AOC and that the powers relating to funds should be exercised only by those members of the AOC who are Members of the House of Commons, because of the exclusive responsibilities of the House of Commons for supply.
I hope that I have set out the amendments sufficiently clearly for Members of the Committee to understand. They are no doubt imperfect, and improved versions could be drafted, but we believe that this is ultimately the right way in which to achieve our objectives. We believe that the amendments achieve the result that is necessary if the commission is to have the demonstrable independence from the Government that is needed if it is to have the confidence of the public. I beg to move.
I shall supplement what my noble friend has so clearly expressed with one or two additional points. First, the noble Baroness, Lady Prashar, is very sorry that she cannot be here today, but she wants to take part in these debates at later stages.
Secondly, my noble friend referred to the report of the Joint Committee on Human Rights. I was not a member of that committee when it produced this report, but the House will note that it was unanimous and that the Lords Members included the noble Lords, Lord Bowness and Lord Campbell of Alloway, the noble Baroness, Lady Falkner of Margravine, the noble Lords, Lord Judd, Lord Plant of Highfield, and the noble Baroness, Lady Stern. In paragraph 29 of that report, the Joint Committee explained that its proposals, which my noble friend summarised,
"translate into the UK context the principle which was constantly impressed upon us in our investigations of equivalent or similar commissions in other countries, namely the fundamental importance of national human rights institutions being independent from Government, both constitutionally and in practice, if they are to operate effectively".
In paragraph 30, the Committee continued,
"we have consistently maintained that it should not be a creature of Parliament, any more than it should be a creature of Government. Nevertheless, we believe that it is right that, in comparison with the Government's proposals, the Commission's accountability to Parliament should be strengthened. This would be a logical reflection of the Commission's constitutional role as an independent watchdog over the executive's actions in relation to equalities and human rights".
The other background matter is that the Paris principles—which I am sure the Minister in her reply will confirm are founding principles for this part of the Bill—
"relating to the status and functioning of national institutions for protection and promotion of human rights" themselves emphasise the importance of independence. For example, they explain that a commission of this kind should be able,
"To submit to the government, parliament and any other competent body, on an advisory basis either at the request"—
I emphasise the word "request"; not "direction" but "request"—
"of the authorities concerned or through the exercise of its power", various matters that I will not bore the Committee by reciting.
Later in the Paris principles we find additionally a reference to the need for financial independence. They say:
"The purpose of . . . funding should be to enable it to have its own staff and premises, in order to be independent of the government and not . . . subject to financial control which might affect this independence".
Finally, on the basis of 30 years' experience especially with the Equal Opportunities Commission and the Commission for Racial Equality, having had the good fortune to advise them occasionally on the exercise of their powers, I think I can say without revealing any official secrets that there have from time to time under successive governments been real problems about ensuring the independence in practice of what happens within the commissions. There are others in this House who also have some experience of that. Whatever the Bill might say and whatever Ministers might believe, I can assure the Committee that there have been very real problems in practice—problems involving staff leaving because they felt that there was too much government influence or control, for example.
It is a particular problem because government and central government are often the direct respondents to the work of these commissions. In other words, very often it is the public sector and especially the government who find themselves on the receiving end of investigations especially into alleged discrimination on grounds of sex or gender. Obviously, to some extent, government would rather not be subjected to strong independent scrutiny of that kind, since everyone, all of us being human beings, believes that power is delightful and absolute power is absolutely delightful and we would rather not have judges and commissions looking over our shoulders.
It is the pressure from governments on the commissions not to be robust which gives rise to problems. Therefore it is vital not only that those who are appointed to be commissioners and staff are really independent, but that the structure encourages public confidence in the independence of the new commission. I as one of the architects of the old commissions feel we made a mistake 30 years ago in not finding ways of enhancing the constitutional status of what is really a public watchdog.
Therefore, without necessarily, as my noble friend has put it, saying that this is the only way of doing it—of course it is not—we hope that imagination and skill will result in the course of the Bill's passage in provisions that will enhance the appearance and reality of independence.
The two noble Lords who have just spoken to this group have explained very clearly the idea of more independence for the commission. Noble Lords will remember that, on Second Reading, we were concerned that there was not sufficient independence for the commission. It is therefore fair to say that on this side of the House we would support that group of amendments.
I hope that the noble Baroness will be a little cautious before she accedes to these amendments. One of the problems is that we have set up an organisation with huge—colossal—powers but we have then turned round and said who will be members of it. The noble Lord, Lord Lester of Herne Hill, is right to say that the commission must be as independent as possible. However, in the end someone has to decide the matter.
If the AOC appoints the relevant people, as the noble Lord, Lord Goodhart, said, someone has to appoint the members of that committee. It all becomes very complicated. I am not so sure that there is not a certain amount to be said for the buck stopping where it starts, so to speak. The Minister who appoints these people should bear that responsibility rather than creating yet another body to look after yet more people. If we were to set up such a body, I hope that we would refer to a chairman and not to a chair, which is a most horrible habit.
Has the noble Lord, Lord Goodhart, consulted with his colleagues in power in the Executive in Scotland on what they would do with the commission which the Executive intends to set up to perform the same function as the commission at United Kingdom level in relation to devolved issues? It seems to me that it would be quite wrong to have a commission with the enormous power which the one established by the Bill will have and with the degree of independence which the noble Lord is proposing—I understand his arguments very well; an argument could be made for that—without the relevant decisions being made by a Scotland commission of similar standing. To have a commission in Scotland that is not completely independent deciding the same issues that are being decided south of the Border by a commission which is completely independent would be very strange. Has the noble Lord confronted that problem? His response would help me, and, I am sure, other noble Lords, to know how to react to his proposals.
I added my name to this amendment because, as other noble Lords have said, I think that it is the independence of the commission which is of crucial importance. I took some time to bring myself round to believing that a commission covering so many areas of equality was the right way forward. However, having accepted that, it is clearly of crucial importance that it is not only independent in its activities but is seen to be independent in the way that its members are appointed. We must not forget that the commission will have human rights promotional duties as well as other duties.
I well remember occasions when I served on the EOC when we had to consider investigating government departments. That was all a little difficult given that the EOC was appointed by, and its funds provided by, government. Those matters are of crucial importance.
Of course, I acknowledge that improvements have been made in the way people are now appointed to public bodies in view of the Nolan principles and so on. But having said that, I am not yet certain what will happen with regard to the Office of the Commissioner for Public Appointments. I do not believe that we have yet heard what will be the next stage with regard to that body. I am delighted, as I am certain are all noble Lords, that Dame Rennie Fritchie is to come to your Lordships' House. She will be a great help in ensuring that an extra eye is kept on all public appointments. But even so, there was a suggestion that that body should be amalgamated with the civil servants' public appointments body. All these issues are important, whoever makes the relevant appointments, whether that is a Crown Commission or whether the matter passes much more from government's to Parliament's control. That is behind my support for this rather different method.
As other noble Lords have said, this may not be quite the right composition of people to do the job, but the work of the commission will be crucially important. Let us not forget either that there is not a Human Rights Bill or a Human Rights Act, as the noble Lord, Lord Lester, would have wanted, to bolster the work of the commission. There is not one yet, so its independence will be of even greater importance. Those are my reasons, and I hope that the Government will seriously consider if not this amendment, an alternative that will satisfy.
I support the amendment proposed by my noble friends Lord Goodhart and Lord Lester. I shall be brief in giving one or two examples of how a lack of independence could make the organisation that we are trying to set up fairly sterile.
First, an organisation such as this must not be an extension or the mouthpiece of the government. If it is going to establish any credibility whatever, it must have the confidence of the public with which it deals. It would be a tragedy if pressure were brought on the commission by the government to pursue a particular line that favours that government.
Secondly, unlike previous commissions, we are now talking about a commission that also deals with human rights. There have been examples in the past. I am delighted that the noble Lord, Lord Ouseley, is in his place. I remember during his time as the chairman of the Commission for Racial Equality, he banged at the government's door year after year for an investigation into the death of Stephen Lawrence, and yet that was rejected until another government came into being. That sort of approach by a government does not necessarily help to advance the cause of race relations in this country.
I can give other examples where pressure has been brought on the existing commission, which again makes it fairly ineffective. During Second Reading, I cited the Commission for Racial Equality's investigation into prison services. That was a task that the government themselves could have taken on, but instead they pressurised the commission into undertaking a massive investigation that cost a lot of money, and the end result was no more than what the prison inspectors had reported in previous years.
There is another example of how powers can be abused. I remember when the Commission for Racial Equality in its early years decided to mount a formal investigation into the immigration control procedures, about which the government was not at all happy. Ultimately, it was not for the government, nor for the commission, but the matter had to go to the court, which decided that the commission had powers to mount an investigation in administration of those services. Those are tactics by which the community soon loses confidence.
No government last in perpetuity. We must be careful. When I worked at the CRE, it was pretty clear that many times the government exercised control through funding, which made its work fairly ineffective. We must understand that there may be other governments who may not necessarily be sympathetic to bodies such as this. It is right therefore that it has an independent status and is able to perform its tasks without any hindrance from the government.
I am grateful to the noble Lord, Lord Goodhart, for setting out so clearly the amendments before us. There is a long and comprehensive list of amendments. Certainly, I would happily support some of the amendments, but taking the package as a whole, I have some reservations. In Committee, we need to remove some of the powers that are given to the Secretary of State to make the commission completely independent of being directed by the Secretary of State. But I am not sure whether creating another committee, as is proposed under the amendments, is the answer to the problem. It will be a completely new structure and I would not want it in any way to fetter the freedom of the new commission to carry out its responsibilities under the Act.
With regard to the financial amendments, in particular, I know it has been suggested that in the past the Secretary of State might have tried to interfere on the financial side. During my days as chairman of the EOC, we would certainly have wished to have more finances than we did. But that was not a question of interference; it was a question of the adequacy of the funding, which is an entirely different matter, whichever form of answerability the commission has. I give way to the noble Lord.
I apologise for interrupting the noble Baroness. Does she agree that if a government—I am not talking about this one—starved the EOC of enough funds so that it could not, for example, carry out its law enforcement functions, that would certainly be an interference with its real independence? In other words, there are situations where a lack of funding leads to a lack of real independence in functions.
But I think that from time to time all bodies, whether they be government departments or independent commissions, will feel that their funding is inadequate because any body such as this is going to be enthusiastic about its cause and may want to do more than is possible under the circumstances. Clearly a government must have some control over that. On the other side of the argument is the question of whether or not the commission would be strengthened by having a government department as its spokesperson in the Cabinet and other government circles.
Returning to the point that I was making when the noble Lord, Lord Lester, intervened, it is crucial that the commission is independent in arranging its own financial budget, and I would not want any other committee to look at what the commission had set out as its own priorities and perhaps overrule them. Certainly that point needs to be considered.
The question of appointments has also been raised and I sympathise with the points that have been made. It is essential that, whoever is appointed as the chairmen and members of these commissions, they should be prepared to exercise their independence fully, even in the face of government resistance. When I was chair of the commission, there were occasions under both governments when slight pressure was applied over an action that the commission was proposing to take. For example, when the commission took cases to the European Court of Justice, it was not liked in government that the UK should be brought up before that court. But that did not affect the commission's decision. It was pointed out to the Minister of the day that the commission had responsibilities under the Act and that it must fulfil those responsibilities. So the independence of the people appointed is crucial. If we want to ensure such independence, we must examine other structures, not necessarily just this commission, to ensure that Government appointments really are independent and that whoever is appointed to those offices should be prepared to act independently on the basis of their responsibilities under the legislation.
I support some of the points that have been made in the debate and I certainly support restricting the powers of the Secretary of State, but, at this stage in our proceedings, we should not take so fundamental a decision as that proposed in the amendment.
I find myself in the difficult position of supporting my Amendment No. 3, in which I ask for commissioners to be appointed by the Secretary of State. It has been pointed out that if that amendment succeeds, it would be difficult for the main amendment to be made. However, I wish to speak on the principle of independence and my support for what is proposed.
The noble Lord, Lord Dholakia, gave clear examples of interference and non-independence by the commission. If the Commission for Equality and Human Rights is to work effectively and bring about genuine fairness and equality to Britain as a whole, it needs to be seen by everyone as having independence of mind and being independent in how it operates, free from Government interference. I have real worries about the way in which interference by the Secretary of State occurs as a result of my practical experience of interference and involvement by Secretary of States, which has not been in the best interests of the functioning of the existing commission. Obviously, I speak about the Commission for Racial Equality.
On one occasion, I was asked to assess the performance of one of the commissioners. Having done so, I felt, objectively, and after passing it back to the department concerned, the next day the same person was appointed, even though I felt that that person had not performed well. On another occasion, I was asked to interview a prospective appointee as a commissioner, who I felt had immense qualities, but was not necessarily the right person in terms of balance and breadth. That person was appointed the next day.
I seek to demonstrate by such examples that we need a mechanism which can give confidence to all concerned—either to those who are intended to be the beneficiaries or to those who have a relationship with the proposed commission—that that body will operate with integrity and independence and will not experience day-to-day Government interference.
So I add my support to the concept of creating a commission that will be seen to be independent and will give confidence to everyone that those who are appointed, by whoever appoints them, will be of genuine competence and bring qualities, skills and experiences that will add to the range of competencies that are necessary for this body effectively to execute its responsibilities and produce the outcomes that we seek—a more fair and just society for everyone.
I am grateful to all noble Lords who have contributed and I would say to the noble Lord, Lord Ouseley, that my ambition is for the Committee stage very much to be an opportunity for me to gain the knowledge and experience of so many noble Lords who have worked in the fields of equality and human rights, and very much to be a listening Minister. So I hope that one amendment will not fall in favour of another at this stage, because I wish to ensure that we have a good, detailed debate on which I can reflect further with colleagues in other Government departments.
I, too, am sorry that my old and trusted friend, the noble Baroness, Lady Prashar, is not here, but, perhaps, I am grateful that she is not adding her voice to this debate. I agree with the noble Lord, Lord Dholakia, that the critical point is that we should have confidence in the commission. In that context, I fully accept the principles behind the debate, about seeking accountability and independence to ensure that the commission is taken seriously so that we can all have confidence in it, regardless of who we are and our particular views on it.
I say to the noble Earl, Lord Ferrers, that I am perfectly comfortable with the word "chairman". I am used to being a chairman; it does not worry me in the least.
I was very pleased with the way in which the noble Lord, Lord Goodhart, talked about the proposal. I would take issue with some of the ideas behind it, as the noble Lord would expect. I was particularly worried about the smallness of the committee. A committee of three people did not appeal to me very much. I would be very nervous about putting so much power and accountability into the hands of three people, as the way in which they were appointed could reflect the political persuasions of the day.
Noble Lords quite rightly referred to the role of anyone who has control of funding being able to strangle an organisation. Within all the proposals, there is no question that the funding for the body will come from the Government. I take the view—I was discussing this with the noble Lord, Lord Dholakia, a couple of hours ago when we met more informally—that we have to create a commission that commands authority and confidence in such a way as to make it quite difficult for any government, regardless of who they are, to feel that they could use funding as a weapon to try to stop the commission carrying out its work.
My ambition for the commission is that it will have the confidence of the population of this country and be able to feel that it has a sense of independence from government. That is what I am searching for in discussing with noble Lords the proposals on the table.
Of course, we have listened very carefully, not only to the views of the Joint Committee on Human Rights, but also the Committee on the Constitution. The noble Lord, Lord Holme, is not in his place, but has written to me and I have replied on these issues. I know he has put the correspondence on the website to ensure that it is read as widely as possible.
I do not believe that what we are setting up will have a constitutional role which requires a complete separation from government. My difficulty is that, as yet, no proposal has been put to me that will enable us to achieve what noble Lords seek to achieve. With great respect to the noble Lord, Lord Goodhart—he probably agrees with me—I do not believe that his proposal achieves that.
At the moment, I would argue that the proposals for the body to be a non-departmental public body fit the bill, on the basis of ensuring that there is a proper, well understood framework and that confidence in any body comes from an understanding of how, and the transparency with which, it has been set up. Although I fully understand what the noble Lord, Lord Ouseley, and my noble friend Lady Lockwood said about their own positions—I pay tribute to their chairmanship of their respective commissions—I am very aware that we must ensure that we use a framework that people well understand and that the commission is set up in the right way.
I am trying to achieve a well defined relationship with government and with Ministers, with well defined duties and well defined powers to build confidence in all directions. If noble Lords feel that a non-departmental public body is an inappropriate vehicle, I remain unconvinced that we have a solution. I would look for a solution that could command confidence by being well understood and transparent and a solution that has a track record as well.
The noble Lord, Lord Lester, talked about and read from the Paris principles. I am not entirely convinced that all noble Lords will be very familiar with those principles, so I shall undertake to place in the Library of the House this afternoon, and send to noble Lords who might be interested, a copy of the principles so that they understand them. They are important principles as regards the way in which the commission will operate.
It is important that the body feels free to speak out on issues of importance. Our current commissions do that and I pay tribute to them for doing so, however uncomfortable, on occasions, that might be for the Government or any other body. That is very important.
We want an open and transparent process for appointing the chairman and the commissioners. Following the standards laid out by the office of the Commissioner of Public Appointments, I do not as yet know its future. If I find out more, I shall be happy to write to the noble Baroness, Lady Howe of Idlicote, put a copy in the Library of the House and write to key members of the committee. Again, it is a well recognised and well respected process. It is critically important that the commission is responsible and accountable to its stakeholders. I tend to include government in that, but, much more importantly, I believe it is the stakeholders who look to the commission to deal with issues that are of particular relevance and importance.
The strategic plan, and we will come on to discuss its role later in our deliberations today, plays an important part. I also agree that it is important to have accountability to Ministers and to Parliament through annual reports and accounts.
So, the door is not closed to further discussion by any means on how we make sure that the commission operates in an independent and appropriate manner. My argument is that I have not yet seen a proposal that, in a sense, moves us further towards how that makes the greatest sense for the commission. I would be loath to move away from a process that has served us well, that is well understood and very transparent. Overall confidence in this new body is as much about how it operates and its ability to demand from government and to stand apart from government, as it is about the nature of that relationship in terms of funding or the relationship with the Secretary of State.
I make a further point to the noble Lord, Lord Goodhart. There is no question at the moment of this being any one particular Secretary of State. The Bill comes to your Lordships' House from the Department for Trade and Industry. It is being taken through your Lordships' House by the Department for Constitutional Affairs. There are interests from a number of departments. There is no particular relevance as regards the Home Secretary or any other Secretary of State. Where best the commission should sit is currently being debated. As soon as any conclusion has been reached I shall tell your Lordships' House.
So on that basis, but also on the basis of continuing to discuss this matter further with noble Lords, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.
First, I very much welcome the support which the noble Baroness, Lady Miller of Hendon, expressed on behalf of her party, or, should I perhaps say, on behalf of her party except for the noble Earl, Lord Ferrers. But that is certainly encouraging.
I was making a general point about the independence; I did not go into the specifics. It may be that my noble friend Lord Ferrers did not understand that.
I accept that. I deal briefly with the question asked by the noble Baroness, Lady Carnegy of Lour. The powers of the new commission, as of the existing commissions, cover the whole of Great Britain—not of course Northern Ireland. But there is a provision in Clause 7 which states:
"The Commission shall not take human rights action in relation to a matter if the Scottish Parliament has legislative competence to enable a body to take action of that kind in relation to that matter".
So devolution is provided for. The Scottish Parliament has set up a commission. But where that commission does not have powers to look into these matters, it remains a matter for the parent body, which will be the commission to be set up under the Bill.
I think that the matter is important. It may seem to be a small point, but the human rights of one tenth of the United Kingdom in relation to devolved matters will, we anticipate because of Clause 7, be in the hands of a commission set up by the Scots Parliament. Has the noble Lord consulted his colleagues in Scotland about whether they would be prepared, should such a commission as he anticipates be set up, to have a totally independent one as well with appointment by her Majesty the Queen and so on? If not, it would be very unfair on people in Scotland, and, I should have thought, a contravention of their human rights.
It is difficult to express an opinion on that. We have not consulted with our Scottish colleagues on the matter, but in view of what the noble Baroness has said, no doubt we will. I think that what she says goes more to the concerns of the Scottish Parliament, who may wish, if anything of the nature of these amendments is accepted by the Government, to reconsider the position of their own commission.
I am most grateful for the powerful contributions made to this debate by three Members of the Committee who have detailed experience of the work of the CRE, in the case of the noble Lord, Lord Ouseley, and of the EOC, in the case of the noble Baronesses, Lady Howe of Idlicote and Lady Lockwood. I pay particular attention to the remarks of the noble Baroness, Lady Lockwood, because I am glad that she supports at least a good many of the principles behind this group of amendments.
As we will obviously not press them to a Division now, we will carefully consider what she said in deciding in what form to retable them on Report. I am struck by the remarks made by both the noble Lord, Lord Ouseley, and the noble Baroness, Lady Lockwood, about problems where there has been some pressure from the Government on the commission.
Finally, I turn to what was said by the Minister. Of course we did not expect her to accept the amendments as drafted. We welcome her approach to this matter—that there are issues that require further discussion—and we certainly hope for a fruitful discussion with her between now and after the Recess, on Report.
There is a fairly substantial gap between us at present. We feel that the status of a non-departmental public body is not enough—among other reasons, because the new commission will be an extremely important constitutional watchdog and will have more enforcement powers. It will have power to issue unlawful act notices under Clause 23, which will be legally binding subject to appeal. So it will not be a body that has powers simply to advise or insist; its power will be those of a tribunal. It therefore has a somewhat different status.
It is also plain that the commission will have to survive unscathed a bad as well as a good government. As I said, there are important issues that will need detailed and careful discussion during the next few months.
Having said that, I beg leave to withdraw the amendment.
moved Amendment No. 3:
Page 54, line 12, leave out sub-paragraph (1) and insert—
"(1) In appointing Commissioners the Secretary of State shall—
(a) ensure that no fewer than one half of the Commissioners have personal or direct experience of one or more of the causes of discrimination or prejudice referred to in sections 10 and 11(2), and
(b) have regard to the desirability of their together having experience and knowledge relating to the matters in respect of which the Commission has functions, including in particular, human rights."
The amendment stands in my name and that of my noble friend Lord Adebowale. I must apologise on his behalf for not being able to be present today. The purpose of the amendment is to achieve a more representative commission. It provides that the framework for the composition of the commissioners appointed to the CEHR will, as best we can, be truly representative of the communities that the commission is being established to serve.
The Government have stated that the Bill aims to move us towards a society that reaches out towards its diverse members and communities. Achieving a representative commission from the outset is therefore essential if the CEHR is to enjoy the trust and confidence of the communities that will be the ultimate beneficiaries of its work.
The current criteria for appointment set out in Schedule 1(2)(1) merely require the Secretary of State to consider the overall composition of the commission when appointing individual commissioners. That is not good enough; it does not go far enough. Under the Bill as drafted it is possible to achieve an all-male, all-white commission; although it is unlikely, it is possible. These amendments provide the minimum level of assurance required to ensure, in so far as it is reasonable to do so, that women, individuals from black and ethnic minorities, older people and other representatives from the different strands are appointed at commissioner level.
The amendments would make it a statutory requirement that no less than one half of the commissioners are women, and that no less than one quarter are from a black or other ethnic minority background. Overall we seek to ensure that no less than one half of the commissioners have personal or direct experience of one or more of the causes of discrimination or prejudice referred to in Clauses 10 and 11(2). The amendments are therefore intended to achieve a more representative commission. I beg to move.
I broadly support the arguments put forward by the noble Lord, Lord Ouseley. Given previous experience, we should exercise caution in this matter. I see the new commission not as a trade union for any particular group of people but very much as a body of able people, appointed from diverse communities, who are there primarily to look after the interests and set the strategic direction of the commission. It would be a tremendous advantage if the proportion, particularly of women and others, who can do that work were reflected in the new commission.
The noble Lord has identified a crucial problem—here we return to the previous argument about the independence of the commission. The chairperson of the commission should be able to determine on the basis of appraisal how suitable people are without the Secretary of State's interference in such matters. We must emphasise the idea that members of the commission are not appointed because they represent a community, and that although their experience will be beneficial to the community, overall their primary duty is to the commission.
I understand the object of this group of amendments. I wish to speak to the other amendments in the group because they are all linked. I shall look particularly at Amendment No. 55, which suggests that equalities committees of various kinds should be engrafted into to the Bill. I have great sympathy with the point made by the noble Baroness, Lady Lockwood, that we should not fetter the powers of the new commission. We would be doing a disservice to the new commission if as Parliament we fettered it by imposing a committee system of the kind envisaged in Amendment No. 55, quota systems or anything else.
I am happy with Schedule 1, provided that we can achieve agreement on independence and a way of achieving a proper system of appointments. I am happy with how it is expressed in paragraph 2. It describes the criteria for appointment as being,
"experience and knowledge relating to the matters in respect of which the Commission has functions".
It then lists discrimination on the various grounds and human rights.
If we attempt to write into the Bill a lot of over-prescriptive stuff of one kind or another, we will, if we are not careful, undermine the cohesiveness of a unified single commission. In my Private Member's Bill, in deference to the disability lobby, I made a concession that would have created a disability committee. I did so partly because the Disability Rights Commission was so new and it seemed politically necessary to do so. Of course, once one does that, every other group says, "Me too". Before you know where you are, you have a Balkanisation or splitting up of the commission into different interest groups. We should not do that.
The chairman, commissioners and senior staff should be left to work out the best structures for achieving the objectives of the Bill. I approve of the way in which that is done in Schedule 1, leaving it to general criteria rather than more specific and intrusive provision. For those reasons, although I sympathise with the aims that the noble Lord, Lord Ouseley, explained, I am not really in favour of the means set out in the amendments.
I agree with the points made by the noble Lords, Lord Dholakia and Lord Lester of Herne Hill. I appreciate what the noble Lord, Lord Ouseley, said and understand the principles that underlie his contribution, but I feel that we could move into a difficult situation if we started allocating a certain number of members of the commission to certain categories. Other categories appear in later amendments. If we are not careful, we will have more categories than we have commissioners.
I support the guidance in Schedule 1, which sets out clearly the interests that the commission must cover, but I agree in particular with the noble Lord, Lord Dholakia, who said that we were thinking not about a particular category but about the experience and understanding that commissioners could bring. That is important, and that is what we should look for in setting up the commission.
I agree with the noble Baroness who has just spoken. It would be wrong to categorise people and say that they were the kind of people whom we wanted on the commission. If one is not careful, one will find that one has packed the commission with vested interests. The whole point of a commission, if it is to work properly, is that it should be diverse and that people should be able to make decisions from a wide perspective. If we have it so that various members must come from a particular community or must be male or female or anything else, we will immediately encircle the commission and encircle its ability to be generous and understanding. That would be a great mistake.
I always try to think about the themes that might come out of the amendments that have been tabled. When I was thinking about this Bill, three themes struck me for today's debate. The first is independence, which we discussed with reference to the previous group of amendments. The second is what I call "freedom of action" or the ability of the commission to operate without being fettered—I think that that was the word used by the noble Lord, Lord Dholakia. The third is lists. Noble Lords who have worked with me on other Bills will know that I have a particular thing about lists, precisely because we end up unable to move or to take action in an appropriate manner because we have confined ourselves entirely by lists in the legislation or because we have missed someone off.
I promise the Committee that if we go down the road of lists we will end up on our next day in Committee or on Report with another set of lists and, as a result, as my noble friend Lady Lockwood said, we shall have more lists than commissioners.
The Committee will not be surprised that I agree with the vast number of Members who have spoken in this debate. I am very reluctant to go down the prescriptive route put forward by the noble Lord, Lord Ouseley, in terms of what numbers from different representative groups ought to be part of the commission. Having said that, I completely understand the point that the noble Lord makes. The commission needs to reflect the society that it seeks to serve. From the point of view of the commissioners, if it does not do so it will have automatically failed. So if it ends up being representative of only one group in our society, it would not be a success.
Where the noble Lord perhaps goes too far with his amendment is that it does not allow us to think about the expertise and experience, as the noble Earl, Lord Ferrers, said, that could be brought to bear on a commission. That might rest in a variety of people who do not necessarily come from a particular ethnic group, who are not necessarily women or disabled, or who represent any other group, but who, because of the work that they have done, we can truly say are committed to the kind of society that we want to create. For those reasons I will resist what the noble Lord, Lord Ouseley, seeks to do, but with the understanding that I will consider us to have failed if we do not have a commission that represents our society in some way.
I am also going to resist, of course, what I call the almost federal structure in terms of committees. We have been very clear in the Bill and we have tried very hard to make sure that Scotland and Wales are represented through a committee, which is absolutely right. As the Committee will know from Second Reading, because of the particular role of the Disability Rights Commission in terms of reasonable adjustments, we have set up, for a period of time, a particular disability committee.
But I am very reluctant to go further. I have met with representatives from different groups, not least from the Greater London Assembly, to talk about London in particular. I accept that London is a distinct case. It is a very diverse city that will look very different in the next five to 10 years and there are certain issues to address. But it is for the commission to decide the committees that it wishes to have. The more that we create through the Bill only one set of committees, the more we hamper it to do precisely the job that Members of the Committee who have argued for independence want it to do; that is, to think cross-cutting and to think out of silos. The noble Baroness, Lady O'Cathain, is not with us today, but she will be joining us for the next day of debate. She talked about silos very powerfully at Second Reading and about not creating a silo mentality in the way we put together the committees, but to allow the commission to be cross-cutting, to be strategically thinking and to look at issues in the right way.
It is for those reasons that I will resist these amendments, but I take on board what lies behind them, as, I think, other Members of the Committee have done. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
I had not intended to take part in this debate, but I felt that perhaps on this amendment I ought to say a few words because I feel quite strongly about it. I agree with the Minister that if a commission is set up to do a particular job, it must not be constrained with all sorts of restrictions so that it cannot do its job properly. I agree that any commission which is set up should be free to organise itself in the best possible way without government or anyone else's interference.
If things go wrong, of course it is a matter for the Secretary of State, and perhaps Parliament, to intervene. I agree that it is the Secretary of State who should set up the commission and not anyone else. The only point to add is that I wish we would also give Parliament a say in who the chairman and the commissioners should be, following the American pattern.
I want also to make this point. The Bill is not about privilege, but equality. The commission ought to concern itself with the equality of all people. It does not matter who they are, what they are, what is their ethnicity or whether they are disabled; the commission should ensure that all people are given an equal opportunity to enjoy life to the full. If we put restrictions on numbers by saying, for example, that 50 per cent of the commissioners should be women, what is to be done if the proportion of women should suddenly fall to 40 per cent? That also applies to trying to equate to the very many ethnic communities in this country these days. We will run into difficulties. I hope, therefore, that the noble Lord, Lord Ouseley, will not go too far along the path of what I believe is his wish to restrict the formation and activities of the commission. It should be independent and should work towards equality rather than privilege.
I thank all noble Lords who have contributed to the discussion on the amendment. It seeks to secure a more representative commission that reflects our diversity. The intention is not to prescribe and fetter the opportunity of the body to work in an effective manner in the interests of achieving equality and fair treatment for everyone in this country. I understand the points made and I have both sympathy and empathy with them. As the chair of a commission, I would not wish to be encumbered with too many instructions were I being asked to set up such a body. Moreover, I am not in any way canvassing for the opportunity to do so; I make that point quite clear.
However, it is important to understand the reason for bringing forward this amendment. It is based on the wide range of consultations conducted in response to the White Paper published in anticipation of this Bill which revealed that some people have little confidence in the existing commissions, but not necessarily because they are doing a bad job. However, people feel that it is right to put their concerns forward if their support and confidence for the new body is to be won.
I have listened to the Minister's response setting out her understanding of the reasons for bringing forward these amendments. In that spirit, while acknowledging fully and supporting the reasons why there is to be a disability committee, nevertheless it immediately creates a disparity in which some will see themselves put at a disadvantage. If we do not recognise that conflicts will arise and will have to be resolved, they will grow. I acknowledge too that simply setting out certain specifications in the Bill will not necessarily ease those difficulties. But if we are to command the confidence of the variety of communities to be served, we must recognise the immense disadvantages that continue to be experienced by some sections of our society in spite of 40 years of legislation. If we do not do so, those sections will not perceive this body as one representing their interests in terms either of its visibility or in its construction.
I understand what has been said by way of response. The noble Earl, Lord Ferrers, was right to point out that no one appointed to the commission should bring with them their vested interests. Equally, however, if we do not have people who understand those interests and are able to take them forward as part of their ability, skill and competence to tackle a range of duties, the commission will not fulfil its objectives. It is to provide a range of functions in line with its responsibilities and so must be able to respond to the needs of the widest possible range of people.
In the circumstances, I beg leave to withdraw the amendment.
In moving Amendment No. 6, I shall speak also to the other amendments in the group which I have tabled. I shall not speak to all the amendments in the group as I know that other noble Lords will wish to speak to the amendments which they have tabled. The group brings together all the amendments relating to disability. It should enable the Committee to have a focused debate on the disability issues in the Bill as many of the amendments read across to each other.
As a general point, the civil rights of people with disabilities stand four square with the civil rights of every other group in society. If we are to achieve equality in society, it is good that the civil rights of disabled people are regarded and achieved as part of the mainstream civil rights argument and not treated as somehow different in concept. Clause 3, "Fundamental duty", sets out these aspirations very well, and Clause 8, "Equality and diversity", Clause 9, "Human rights" and Clause 11, "Communities", are all statements of the mainstream argument.
However, we know that the issue of disability is different and presents particular problems—such as physical access and the accessibility of information— which come under the general heading of "reasonable adjustment". These are civil rights but they need a distinctly different approach. This is recognised in the Bill under Clauses 10 and 20 and Part 5 of Schedule 1.
As I have said, the amendments deal with that different approach. They are intended to improve the Bill by probing the Government's intentions. The amendments to Clauses 10, 11 and 20, in particular, suggest a different approach and, perhaps, a complete redrafting of Clause 11.
Amendment No. 6 suggests that one commissioner to represent disabled people's interests is not sufficient. Equality issues are not straightforward and one commissioner cannot be expected to champion them all. Having more than one commissioner would allow for a wider range of experience associated with disability. This would contribute to the diversity and depth of understanding of equality which the CEHR seeks to achieve.
We must consider the diversity of disability. For example, the needs and problems of the wheelchair user are different from those of the visually impaired; which are different again from the hearing impaired; which are different again from the learning disabled. I have mentioned only four disabilities, but there are many kinds of impairment. I have referred already to the problems of physical access, and accessibility to formats of information for the visually impaired, the hearing impaired and the learning disabled.
I am sure that the Government will point out that under the Bill a disability committee will be established to deal with this, and they may be right. But perhaps the Minister will explain how the Government expect the CEHR to deal with the diversity of requirements resulting from different impairments with only one commissioner who is disabled.
Amendment No. 50 deals with the vexed question of the review of the life of the Disability Committee. Disabled people began to achieve civil rights only 10 years ago with the Disability Discrimination Act 1995. It was only in 1997 that the Disability Rights Commission was established to oversee the monitoring of disability discrimination and subsequent legislation. Thus the implementation of civil rights for disabled people is quite young compared to other anti-discrimination legislation.
As I said in regard to Amendment No. 6, disability discrimination has inherent complexities. Its elimination will require extensive input from disabled people on how it can be achieved. This approach has been acknowledged and this Government and previous ones have sought to include disabled people in their current and ongoing policy work.
The British Council of Disabled People has pointed out that the proposed potential five-year life of the Disability Committee does not give sufficient guarantee to ensure that its members can strategically plan for the inclusion of disabled people in society. After all, the Government have allocated 20 years for this to happen. By that logic, the committee should certainly run for longer than five years.
Disabled people expect that a very important part of the committee's remit will be to promote and oversee the spirit of the report Improving the Life Chances of Disabled People and its implementation. I should say in passing that that is an absolutely first-class report.
It has taken from 1995 to 2005 to get the anti-discrimination legislation into the right form. The Disabled Rights Commission has been a great success and I feel that the arbitrary potential five-year time limit on the life of the Disability Committee is too short.
Amendment No. 56 deals with resources. Paragraph 55 of Schedule 1 states:
"In allocating its resources the Commission shall ensure that the Disability Committee receives a share sufficient to enable it to exercise its functions".
When organisations or functions within organisations merge, it often leads to savings. As such, there is concern in the disability community that merging three commissions and extending the new commission's remit to cover other equality issues may adversely affect the budget allocated for necessary work on the promotion of disability equality. The amendment would ensure that the Disability Committee will start with at least the same resources as those of the DRC when it is wound up. I hope that the Minister will be able to give us that assurance.
The amendments I shall talk to next deal with the most central concern in the Bill—the treatment of disability within the Bill. These linked amendments are Clause 10 stand part, Amendments Nos. 94, 95, 97 and 98 to Clause 11, and Clause 20 stand part. The purpose of the amendments is to remove Clauses 10 and 20 and put disability into the mainstream of the Clause 11 provisions on good relations in communities. They would further ensure that Clause 11 preserves and reflects the distinctive aspects of disability equality and does not define groups such as black and minority ethnic disabled people as a sub-class, which is an unfortunate phrase.
The Bill and the future CEHR need to reflect what is distinctive and what is generic about disability equality. They also need to reflect the key challenges ahead for disability equality, such as improving relations between disabled and non-disabled people so that disabled people feel safe and have a real sense of belonging in their community. There is a view that it would be better to include disabled people and their situation in an amended Clause 11 rather than have separate provision in Clauses 10 and 20.
The good relations and communities pillar of the CEHR is of immense importance to disabled people. Clause 11 gives the CEHR the power to address the tensions that exist between individuals on the basis of the communities to which they belong and also to ensure that disadvantaged groups are not left isolated within society. That is of obvious relevance to disabled people, whether or not they define themselves as part of a community as such, in view of the prevalence of bullying, harassment and hate crime inspired by prejudice or hostility towards people with all manner of impairments. We were delighted earlier this year that the Government accepted the amendments to the Disability Discrimination Bill suggested by myself, my noble friend Lord Ashley, the noble Lord, Lord Addington, and others which dealt with just this point.
However, the Bill sets disability apart from the other strands; the disability provisions are set out in Clause 10. Like Clause 11, Clause 10 requires the commission to take action against involuntary isolation and eliminate prejudice, hostility and harassment. It differs from Clause 11 only in that the community relation provisions are replaced with a duty to,
"promote understanding of the importance of the fair treatment of disabled persons" and encourage good practice in the treatment of disabled persons. These provisions are clearly intended to reflect the fact that the Disability Discrimination Act, unlike the other equality Acts, is asymmetrical. Unlike race and sex equality law, it does not confer rights on everyone, but focuses on addressing the barriers to participation for disabled people.
We share the Government's concern to ensure that the Equality Bill recognises this key and distinctive approach to disability equality. We understand the purpose of having a separate clause on disability to reflect this distinctive approach. Our amendments, which would amend Clause 11 to embrace disability, make clear this distinctive, asymmetrical approach. Specifically, we propose a provision that would make it clear that Clause 11 should be read and given effect in a way which is compatible with the principle that equality of opportunity for disabled persons involves, in particular, taking steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than others. This wording is familiar. It is taken from the disability equality duty that is enshrined in the DDA 2005, to which the CEHR will be subject, thus ensuring consistency with those provisions.
I have the feeling that the Government are wondering whether the drafting of Clause 11 properly fulfils the Government's objectives. It may be that removing Clauses 10 and 20 and replacing them with a new Clause 11 would be the best approach.
The last amendment that I wish to address—I know that the Minister has been looking forward to this—is Amendment No. 140. It is highly technical and intended to ascertain whether the CEHR will be able to make compromise agreements where appropriate, to settle employment discrimination claims, and to clarify whether the CEHR will need to take out professional indemnity insurance or be exempt from that requirement. I believe that the Government may wish to take this amendment away and consider it, so rather than take the time of the Committee, I will leave the Minister to explain all the technicalities when she comes to reply. I beg to move.
It has been suggested that I should speak now because the amendments that I have proposed cover similar ground to that covered by those of the noble Lord, Lord Carter. If no one has any objection, I will put them forward.
I wish to speak to Amendments Nos. 47, 51, 52, 53, 54, 76, 82 and 167. The purpose of these amendments is to make a very good Bill even better. They have been discussed with the Disability Rights Commission, which has been very helpful and supplied me with millions of splendid briefings. I am grateful especially to Caroline Ellis. However, the DRC is not in any way responsible for my opinions.
Amendment No. 46 would make explicit provision for consultation with disabled people in the planned review of the Disability Committee. This review would be independent and involve consultation with interested parties. Disabled people and their organisations would expect to be closely involved and have their views heeded. That is very natural.
However, the Bill states merely that those conducting the review should consult persons whom they think are likely to have an interest. Of course, it is probable that disabled people would be consulted, but we would like to see the provisions on the face of the Bill, explicitly requiring consultation with disabled people.
"must include people and organisations working for, and made up of, people with disabilities".—[Hansard, 15/6/05; col. 1307.]
But that merely confirms the requirement for this provision to be in the Bill. I hope that the Minister will accept that.
Amendments Nos. 51, 52 and 53 would ensure that the review of the Disability Committee is generally fair and open-ended. I know that that is the aim of the Government, but I am not sure whether they would achieve that with the Bill as it stands.
Those conducting the independent review must, according to paragraph 59, submit a report to the Commission for Equality and Human Rights, which must include a recommendation on how long the committee should continue to exist. The CEHR would then make a recommendation to the Secretary of State, who would then by order dissolve the committee—and the order would specify when that would take effect. There is no provision for further review.
The consequence of the wording of those paragraphs seems to be that, regardless of what the independent review may wish to recommend, the Secretary of State is obliged to order the dissolution of the committee at a fixed point in time, as opposed to having that as one option among a range of options. A review may well conclude that the committee should be dissolved, or it may not, but the evidence may point the other way. Disabled people would be concerned if they were led to believe that a pre-emptive decision had already been made to end the committee. I am sure that my noble friend will reconsider that matter.
The Bill does not adequately reflect my noble friend's intention that the review of the Disability Committee after five years will be open and objective and would not be based on any assumption about whether the committee would continue thereafter or not. The Bill should provide an open-ended review, and that is what the amendments would achieve. I know that at Second Reading, my noble friend said that under the Bill the committee's lifespan could be extended for a short time or for several years. That goes some way towards meeting our point, but it does not fully answer it, which means that all options are open. I hope that my noble friend will kindly reconsider the matter, and I am sure that we can reach some understanding on which amendments could be accepted.
Amendment No. 54 aims to ensure that decisions on the future of the committee would have to be approved by Parliament. These are the basics of our democracy; we would not want an order to dissolve the Disability Committee to be made without effective parliamentary scrutiny. The affirmative resolution procedure and the parliamentary scrutiny that that involves would be more appropriate given the significance of the decision for disabled people.
The purpose of Amendments Nos. 76 and 82 is to put the case for independent living and to seek an assurance from my noble friend that the CEHR will carry on the work of the Disability Rights Commission. I know that the Government have responded constructively to the White Paper consultation and I would be delighted if my noble friend could go a little further. "Independent living" has many interpretations, but the one that I prefer is when it means that disabled people have the same choices, control and freedom as other citizens, at work, at home, in education and as equal members of society. Those words may become a mantra in the years ahead; but the sooner that we register them in the minds of those in Parliament and the public, the better.
The overwhelming majority of disabled people are denied independence on a daily basis through limited choice and opportunity to participate. That situation is absolutely scandalous, and we accept it far too easily and readily. Of course, it does not mean that disabled people will be doing everything themselves, but it does mean that the practical assistance that disabled people need should be provided based on their own choices and aspirations. I might add that that agenda is highly relevant to many older people who may not necessarily define themselves as disabled.
Independent living is the next major challenge and objective for disabled people. It is at the heart of the Government's strategy on improving the life chances of disabled people, published by the Prime Minister's Strategy Unit earlier this year and accepted by the Government as policy.
The one point that I disagree with in that report is the date that the Strategy Unit gave of 2025 for when disabled people should have full opportunities and choices as equal members of society. That is absolute nonsense. The year 2025 is two decades ahead, and to aim at that long distant point is unrealistic. It should not take two decades to establish those principles and practices. I believe that the intention, good will and ambition are there. There is no reason why, with the support of Parliament, we should not achieve that, at the most, in one decade. I think that that is quite long enough.
The essence of the problem, as the Strategy Unit agrees, is that benefits often create dependency rather than promoting independence and extending opportunity. Disabled people have been expected to fit into services rather than services being personalised to respond to individual needs. That is the key to this whole business. Disabled people are not currently supported to live independently and continue to have, in many circumstances, their lives "defined" by others in terms of their participation and, particularly, independence.
The report also agrees that an entirely new approach is needed which allocates available resources according to individual need in terms, in the form of individualised budgets made transparent to the disabled person. Individuals should be able to choose whether to take this in cash or services; the choice is absolutely crucial. Either way, the budget should be used to secure the appropriate type of support for the individual—appropriate type, not something that fits in with the general idea.
We need to recognise that this new approach will require changes in the way in which budgets are organised and services are delivered. The co-operation and participation of disabled people in this exciting venture will ensure its success. However, the CEHR will need to work closely with the office for disability issues to support the implementation of this very ambitious strategy, drawing on the expertise of the Disability Committee and its staff.
I conclude by saying that the Disability Rights Commission has been working on independent living for some time. Its agenda includes the following which I think are absolutely crucial: a right to protection against enforced or inappropriate admissions to residential care and a positive right to choose where and how they live; secondly, the right to advocacy and supported decision-making; thirdly, the right to communication support for those who need it—communication needs to be routinely recorded in all care plans and assessment records; fourthly, social care service assessments to be based on the starting point of self-assessment; and, fifthly, minimum guaranteed outcome on supporting independent living in the care standards framework.
All of those provisions are of great importance and the Government should support them. The Government do support them, but they should become very active on the principles and the practices. They are an absolute minimum if independent living is to become a reality. I look forward to the response of my noble friend the Minister. Many disabled people are living in hope and I am sure that she will not disappoint them.
I am very fortunate to speak on this issue after the noble Lords, Lord Carter and Lord Ashley, for the simple reason that they have done most of the hard work.
The first principle behind this group of amendments is the need to get enough information on the disability provisions to the new commission to enable it to do its job properly. Even within this Chamber there are many people with different types of disability who work through those disabilities. None of us has never at some time had the thought, "Oh, does that happen to you too?" That point comes across from various groups. I favour the purely practical approach of saying that we need a supporting committee, because there is great diversity in disability. The noble Baroness, Lady Wilkins, for example, has dyslexia and is in a wheelchair. Those two sets of problems combine to create a unique set of problems. Both sets are difficult to appreciate for those who have never experienced them. Combined, the problems become almost unique.
I hope that the noble Baroness, Lady Wilkins, does not object to my using her as an example. However, her situation is an example of how these problems occur. You must ensure that you have sufficient input and information to be able to deal with them. I should hope that the Minister will be able to reassure us that the Government have taken on board the issue and are ensuring that sufficient information will be provided to the right people. I say that as a flash bulb goes off in my eyes. We must make sure that that information is provided at the right time for the simple reason that without it these people will miss out. The small groups who make up the huge disability lobby will miss out. Some of those groups are very small indeed. Information will continue to emerge as technical innovations in medical science occur.
I turn to amendments that are equally valid; that is, those which seek to enhance Clause 11 and the Motions which oppose Clauses 10 and 20. We are coming round full circle here. The comments of the noble Lord, Lord Carter, on the matter were correct. If we can get rid of Clauses 10 and 20 and incorporate them in Clause 11, we would support the Government's intention of not separating the issues of disability and community. I should be interested to hear the Minister's response on that. We are trying to bring the two issues together to form a whole, but a whole that has sufficient support to function properly.
Amendment No. 87, which stands in my name, was tabled late. The problem it addresses was drawn to my attention only at a late stage. I hope that the Minister will have had time to address it. It seeks to counter isolation and would encourage the,
"active participation of disabled persons in public life".
Certain groups of disabled people have become isolated. Certain groups within the deaf community have decided that they do not need input from the outside world. That can lead to isolation, particularly of children. I hope that the Minister will comment on how that problem is being addressed. This is a probing amendment in the true sense of trying to find out what the Government are doing about this matter. The matter has always worried me. It should not be possible for an adult to deny his child the right to use hearing equipment, for example. That is the one example with which I am familiar; I am not saying that it is the only one. You should not be allowed to say, "Thou shalt not hear. Thou shalt not undergo surgery which could be of help". I doubt whether the amendment is perfect, but I should be interested to know the Government's thinking on the matter as it might inform not only this but future debates. I hope that these amendments will be accepted as they would bring disability more into the centre of the Bill.
I strongly support all those amendments to which the noble Lords, Lord Carter, Lord Ashley of Stoke and Lord Addington, spoke. Consequently, I shall speak only to those amendments to which my name is attached.
As my noble friend Lord Ashley of Stoke said, the purpose of Amendments Nos. 51, 52 and 53 is to ensure that the review of the Disability Committee is genuinely fair and open-ended. The independent review may well find overwhelming evidence that the Disability Committee should continue—and that it should be this committee which continues with its current composition and accumulated experience and expertise, not a new committee for which the Bill provides. I am very grateful to my noble friend the Minister for her letter setting that out as a possible option, but it does not meet disabled people's concerns at what looks like a pre-emptive decision regardless of how the committee works out in practice.
It would be very unfortunate if the Bill demanded the demise of a committee that had won the confidence and respect of disabled people. I hope that the Minister will see her way to accept the amendment.
Amendments Nos. 76 and 82 are both probing amendments, as my noble friend Lord Ashley of Stoke said. They seek ministerial assurance that the CEHR will carry on the breadth of the DRC's essential work on independent living. They also seek to spread awareness of the way that independent living should be promoted under each of the CEHR's pillars. My noble friend Lord Ashley has spoken at length about the importance of independent living and, as he said, it is central to the equality of disabled people. It means that disabled people have the same choice, control and freedom as other citizens. Many people assume that already exists; but disabled people are only too aware that it does not.
Although the amendment is to Clause 8, the equality pillar, independent living is also central to the CEHR's work under each of its three pillars—equality, human rights and good community relations. Clause 8 gives the CEHR a duty to promote equality of opportunity, which is about positive action to remove barriers to inclusion and participation. The CEHR will need to carry on the DRC's work on closing the equality gaps between non-disabled people and disabled people in employment, education and access to services and health. That means not only continuing the work in promoting access to dedicated services and entitlements for disabled people, such as the Access to Work scheme, but to continue to champion key components of the DRC's independent living agenda, such as the right to protection against enforced or inappropriate admissions to residential care and positive rights to choose where and how you live.
Under the good relations pillar, the CEHR will have a duty to combat the involuntary isolation of disabled people and the other strands, which means challenging enforced institutionalisation or separation from the wider community, and challenging the barriers in housing, transport and the built environment that lead to involuntary isolation.
Under the human rights pillar, the CEHR will have a duty to promote the importance of human rights and also to encourage public authorities to comply with Section 6 of the Human Rights Act 1998, which prohibits action incompatible with convention rights. Again, that duty will be a key to promoting independent living. The CEHR will need to promote the positive obligations of public authorities to allocate resources in a manner which promotes the family and community life of disabled people and which ensures the avoidance of inhumane and degrading treatment.
Again, involuntary placements into residential care, or the failure of services to support people in a manner that allows them to socialise with others and enjoy family life, could be addressed through the CEHR's work on human rights. I am extremely hopeful that the Minister will give her assurance that the CEHR will be charged with carrying on the DRC's work on independent living.
My apologies. I should not gasp for breath.
Finally, Amendment No. 137 to Clause 30 addresses the need to activate power to bring human rights cases on behalf of disabled people. It is a probing amendment on the need to activate power that is being carried over from the DRC Act 1999, which would enable the CEHR to assist disabled people with Human Rights Act cases. That power can play a vital role as part of a wider strategy geared towards achieving equal citizenship for disabled people.
There is substantial evidence of the abuse of disabled people's human rights, ranging from the withholding of life-saving medical treatment to inappropriate placement in institutions with no independent review, or being trapped in inaccessible housing without essential communication or advocacy support. Disabled people need the CEHR to have strong and meaningful human rights powers and to be able to enforce their human rights, not merely talk about them. The Government's original intention, as set out in the White Paper on the Disability Rights Commission, Promoting disabled people's rights: Creating a Disability Rights Commission fit for the 21st century, was that:
That policy has never been put into practice, despite repeated calls from the DRC to be allowed to do so. The DRC receives significant numbers of calls from disabled people wanting advice and support for discrimination claims under the Human Rights Act but, without the powers to act on their behalf, the commission is unable to help them.
"We have argued from the outset that the existing processes available to those who allege breaches of their human rights are adequate and well understood and attract public funding in appropriate cases".
However, the evidence demonstrates that disabled people are badly failed by the system. The legal aid system is widely viewed as being in a state of crisis. Only the very poorest people qualify for public funding, and further cuts are planned. Fewer and fewer lawyers and advisers are willing to take on legal aid cases or even give first-stage advice.
That is a general problem, but disabled people face major additional barriers to taking action to gain redress. As Luke Clements and Janet Read suggested in Disability Rights in Europe—From Theory to Practice, which was edited by Caroline Gooding and Anna Lawson and published by Hart Publishing in 2005, if initiating a legal claim is daunting for most people the issues are magnified for disabled people. They wrote:
"Disabled people often live in circumstances which are poorer and more constraining and limiting than those of their non-disabled peers. It is not uncommon for many to have faced years of stress, exhaustion and poor health without adequate support . . . Embarking on the complex, taxing procedures attendant on bringing a challenge under the Convention would be regarded by many such disabled people as impossible. Research suggests that some disabled people feel ill-equipped to make complaints in the standard way and that they are often fearful of the negative consequences".
Apart from a few high-profile cases, hardly any disability cases come forward, which many experts consider is due to the particular barriers to access with which disabled people have to contend. The legal process and practicalities of the court system throw up further barriers, including physical barriers to access such as physical access to courts and the unavailability of information in accessible formats. Also, users with mental health issues or learning difficulties may have difficulty understanding the process or following the progress of their case, or may find the legal process particularly stressful.
To ensure that disabled people make full use of the Human Rights Act and their convention rights, the CEHR needs to be empowered to assist where a disabled person cannot get legal aid or other assistance, where it is unreasonable to expect the applicant to deal with the case unaided and, most particularly, where the case raises a matter of principle and strategic importance.
There is one other compelling reason for enabling the CEHR to bring cases for disabled people, which relates to the expertise that it will be able to bring to bear. Justice Munby emphasised that point in Burke v General Medical Council, in which the Disability Rights Commission intervened as a third party. He said that,
"the DRC was able to deploy, to the greatest assistance of the court, a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand".
It is through strategic cases such as that that the CEHR could generate wider social change, and a sea change in the recognition of disabled people's human rights. There is a clear argument for the need to activate the power to bring Human Rights Act cases on behalf of disabled people. The Disability Rights Commission understands that there has never been full consideration of the need to empower the CEHR to bring stand-alone human rights cases, in relation to either disabled people or other disadvantaged groups.
Although the Joint Committee on Human Rights did not support the CEHR's having litigation powers "for the time being", that recommendation was conditional on further review based on whether individuals with bona fide Human Rights Act claims were discriminated against in relation to their ability to access the courts, in comparison with individuals bringing claims under equality legislation. Also, the Joint Committee on Human Rights does not have a specific remit regarding the promotion of disability equality, so it did not examine this aspect in detail.
Can my noble friend the Minister assure us that there will be a thorough review of the consequences for disabled people of not giving the CHR any powers to consider stand-alone human rights cases? Would she agree that such a review needs to look at the nature and extent of human rights violations against disabled people? It needs to look at current patterns of Human Rights Act litigation involving disabled people, at the evidence of unmet need for legal redress and whether disabled people have effective access to justice. When do the Government intend fully to review the case for activation of the power to bring human rights cases and under what circumstances would they consider that appropriate?
I apologise to my noble friend for interrupting her earlier. I am delighted that I did not succeed in cutting her off, because we learned a great deal about human rights and I know nothing about them, really. I shall try to be as brief as possible on this huge group of amendments. We have heard clear and comprehensive explanations and some telling points have been made. I shall try to remain coherent, if that is possible—bear with me.
First, Amendment No. 47, regarding the future of the Disability Committee, is of huge concern to disabled people. Unless it is written into the Bill that disabled people specifically must be consulted in the five-year review, we can have no confidence that their views will be given due weight.
Regarding Amendments Nos. 51 to 53, spoken to by the noble Lord, Lord Ashley, and my noble friend Lady Wilkins, disability organisations thought that the deal struck on the Disability Committee meant that the five-year review would be open and objective, not based on any assumption about whether the committee would continue. But the Bill appears to state the opposite. I thought that I saw encouraging nods from the Minister—and I see another encouraging nod, so I am even more encouraged. My question would have been: if participants in the review called for a permanent committee, or continuation for 10 years and a further review, how could that be done without a change in the Bill? Perhaps her nod means that she is backing the change in the Bill. I am cheered.
Amendment No. 54 is important. It is not acceptable to propose abolition of the key disability guarantee in the Bill, thereby significantly altering the structure and remit of the CHR without coming back to Parliament to obtain approval.
Amendment No. 76 on independent living has been well covered by the noble Lord, Lord Ashley, and my noble friend Lady Wilkins, particularly regarding human rights. She and I were involved with disabled people's problems over housing and the serious concerns about too many people receiving residential care, when alternative support might have been more appropriate. Under the Human Rights Act, authorities are unlikely to be able to insist upon a care package that institutionalises a disabled person merely because it is the cheaper option. Indeed, I am advised that avoidable or unnecessary institutionalisation could be vulnerable to a challenge involving Article 8.
I strongly support removing us, as disabled people, from Clause 10 and 20 and putting us with everyone else in Clause 11. I meant to put my name to Amendments Nos. 94, 95, 97 and 98, in the names of the noble Lords, Lord Carter and Lord Addington. By mistake my name has inadvertently been added to Amendments Nos. 88, 90, 91 and 92, in the names of the noble Lord, Lord Lester, the noble Baroness, Lady Falkner, and the noble Lord, Lord Addington, relating to Clause 11. Also, I am afraid that I did not put my name to Amendment No. 113, in the name of the noble Lord, Lord Goodhart. However, I shall return to the amendments in question.
There is nothing that the CHR could do under Clause 10 that it could not do equally well, if not better, under Clause 11. That would have the added benefit that disabled people who faced multiple prejudice due to their race, religion, sexuality or gender would be more comprehensively included.
My name is intentionally to Amendment No. 112. The amendment asks for clarification of the status of legacy codes of practice and, specifically, whether they will be valid for the purposes of judicial proceedings until CEHR replaces them with new codes. It may seem like a minor point, but that is one on which disabled people, in particular, seek firm assurance.
I shall leave human rights as my noble friend has covered that point beautifully.
On Amendment No. 167, I feel strongly about the DRC transitional commissioner. At Second Reading, the Minister justified the anomaly of the DRC transitional commissioner's short term of office by reference to the establishment of the Disability Committee. I can see no logic in that, as the transitional commissioner has a backward-looking role and is concerned with the effective transfer of expertise, whereas the Disability Committee has a forward-facing role, taking forward new disability initiatives from CEHR.
We know that it can take some time for a new commission to reach its full staff complement and to establish new working practices. I would have thought that we would not want to lose the expertise of the DRC transitional commissioner during such a critical period. I understand that three commissions agreed that the terms of all three transitional commissioners should be on a common basis and provide similar opportunity to contribute to the success of the CEHR in its early days. I hope that the Minister will reconsider this point too.
As I very well know, the Minister is very much a listening Minister, as is the noble and learned Lord, Lord Falconer, so I hope that during the passage of the Bill, with a few tweaks and one or two definite changes, we shall improve a basically good Bill.
I have a huge respect for the disability lobby in this Committee. I only wish the children's lobby were half as effective. I raise the question of whether this mass of amendments on disability does not, in some way, imbalance the Bill? After all, there are many other disadvantaged groups in this country. As I understand it, the Bill's objective is to bring equality to those who lack equality, and to legislate against discriminating in favour of those who are considered to be within the group that does not lack equality. Therefore, there is quite a premium in being disabled or in falling into one of the other groups that are covered. Otherwise, the Bill will forbid any kind of favourable discrimination in schools, except those schools that are accepted by the Bill, and so forth.
My particular concern, as many Members of the Committee will know, is for those who have been disabled by their early upbringing or by their educational background. The noble Lord, Lord Carter, said that there are many forms of impairment. Are people with that kind of impairment included among the disabled, and, if not, why not? Their life chances are damaged, not in the same way, but in a way that is equivalent in its effect to the disadvantages of some disabled people. It seems to me, that they should be able to benefit from the same kind of advantages that the Bill offers, in terms of positive contribution and support. Therefore, I ask: what is the definition of "disabled"?
I am glad the noble Lord ended with an easy question. I look longingly at the officials to see whether they can come forward with a full definition. I suspect many Members of the Committee could do a far better job than I can in seeking to address the problem.
Not at all really. However, we will try and get a definitive definition. I could give the noble Lord my own, but I am very mindful that I am in the presence of people who would do a far better job.
Perhaps I may say at the outset that the reason this is such a huge group is the result of a request of my noble friend Lord Carter and not the Government trying to make it more difficult to have a huge debate. My noble friend thought that it was—and I think rightly—important to have one big debate on the subject. I thought I should explain that to the Committee.
I say to the noble Lord, Lord Northbourne, that the children's lobby is pretty effective in this House. In taking through the Children's Bill, I felt its presence on many occasions and was delighted to do so.
I hope that noble Lords who contributed to Second Reading will have received today copies of the "Easyread guide" to the Bill. Noble Lords will remember that I apologised unreservedly at Second Reading, and did so in letters to some noble Lords, that it was not available. It is available; it is on its way to you today; it is in the Library of the House; and it will be sent out to those who might benefit from receiving it. I am very grateful that noble Lords raised that matter with me. We will endeavour to do that more swiftly in the future.
A number of amendments and key points have been raised. I shall go through them more systematically than usual to make sure that I cover them all, but I will do so with a degree of brevity because noble Lords, I know, will want to continue to pursue other aspects of the Bill.
My noble friend Lord Carter began with Amendment No. 6. The existing provision required that we appoint one commissioner who is or has been a disabled person. The "or has been" is an important factor, not least because of the point made by the noble Lord, Lord Northbourne, about those who may suffer from impairment or mental illness as a consequence of upbringing, for which they may receive treatment and may indeed recover. So that recognises that disabilities are not always of a permanent nature, but none the less it is extremely important for them to be recognised within the Bill.
We think that having one disabled commissioner gives a sufficient degree of assurance, with the requirement that there is also a disability committee. At least half its members will be people who have, or who have had, a disability. We think that that is enough to ensure that we have reflected the importance of influencing the CEHR. Because of what I have already said about not trying either to hamper the effectiveness of the commission, or, indeed, to get further into lists, I think that we have reached a very good position in terms of ensuring that the particular issues addressed by the Disability Rights Commission are dealt with through the committee and the commissioner, but without trying to prescribe to such an extent that we walk into the issues we discussed regarding the amendments of the noble Lord, Lord Ouseley.
We have a series of amendments—Amendments Nos. 47 to 54 and 56—on the terms of the review of the activities of the Disability Committee. Noble Lords will know that I said in my letters following Second Reading that we are committed to ensuring that the review consults "people whom they think likely to have an interest". We would expect that to include organisations representing people with disabilities, and, of course disabled people themselves. We also expect the Secretary of State, when corresponding with the commission—as he sets out in the commission's priorities in the year the review is due to happen—to stress the importance of fully involving those people and their organisations in that process.
Further, those who conduct the review have to publish a report. That will reflect the views of those who have been consulted, including disabled people and organisations for, or of, disabled people. It must be a transparent and open process with—again back to the word used earlier by the noble Lord, Lord Dholakia—a degree of confidence in its application. Otherwise, it will simply be a waste of time.
After the review, as noble Lords know, it will be open to the Secretary of State to decide for how long the Disability Committee should continue. I want to be clear that we intend to ensure that the Secretary of State in that context would write in that way. I have checked with officials in our legal department about the status of my comments on this. I am told that if there were a judicial review on whether the process was as I have said, my comments in Hansard would support a case for judicial review but would not in themselves be conclusive. So I have been very deliberate in saying what we would expect in order to put it on the record.
We come to an issue that exercised Members of the Committee, especially my noble friends Lord Ashley and Lord Carter, but also my noble friend Lady Wilkins and the noble Baroness, Lady Darcy de Knayth: the five-year review. I had a conversation with the noble Lord, Lord Addington, yesterday, in which I described the process as removing the Secretary of State. I want to explain what I mean by that.
We are setting up a separate committee specifically for the reasons that I have given, to consider the role of the Disability Rights Commission. But, as I said, my colleagues and I are deeply reluctant to create silos or to be too prescriptive. We think that five years is about right. Inevitably, it is a compromise, but it is about right before review, because that gives the committee time to settle down and for the strategic planning and so on to have taken place. After five years, it is appropriate to revisit the case for the committee.
At the point of that review, the Secretary of State then says, "On the basis of what has been recommended to me by the commission and was said in the review, I will let the committee continue for X". That might be two years, five years, 15 years or whatever. At that point, the Secretary of State's role disappears. But the commission can decide to continue with the committee. In other words, if the Secretary of State says, "I am going to continue this committee for another five years", in year four, the commission can decide that it thinks that the committee is so valuable that it wants it to continue and set it up itself—with the exception of Scotland and Wales, which are legislated for differently in the Bill.
So all we are doing is removing the role of the Secretary of State. In the context of our discussion about independence, that is important. It does not mean that the committee has a finite life; it means that the responsibility for determining whether the committee continues rests with the commission. I hope that when Members of the Committee have had time to reflect on what I have said, that will change their view about what happens as a result of the review.
The Delegated Powers and Regulatory Reform Committee commented on paragraph 61 of Schedule 1. It believes that the main purpose behind the power does not require a high degree of parliamentary scrutiny. I hold that committee in the highest esteem and would never—I never have so far, anyway—seek to undermine or do anything other than what it suggested. I take with great seriousness its views on whether we have got it about right. So I will stick with supporting and listening to what it has said.
Given what I have said about what happens to the committee, the Committee may reflect that the amendment is unnecessary. So I hope that that set of amendments will not be pressed, but I am happy to discuss what I have said in more detail.
Amendment No. 56 concerns budgets. The Committee will by now be easily able to predict what I am going to say. It is critical that we resource this correctly. There is a 40 per cent increase in the total budget built in for the new commission. We are clear that the commission must allocate a sufficient share of resources—both staff and money—to the disability committee to enable it to exercise its functions. I rather hope that there will be some economies of scale, not least on accommodation and IT—perhaps even on staffing resources. I am also minded that the commission may decide that particular pieces of work that it wants to do require it to move resources around—not to the detriment of people with disabilities nor the committee, but to enhance what it does.
So, for all the reasons that I have mentioned about freedom of action, I am not minded to go further to say that we must take this pot of money and transfer it across, because of economies of scale and because it would prevent the committee doing what it ought to do and constrain it. That is not appropriate, but it is certainly not in anyone's interest for the commission to be anything other than adequately resourced.
Amendments Nos. 76 and 82 relate to independent living, which was also discussed during Questions, when my noble friend Lord Hunt of Kings Heath addressed the question of the proposed office for disability issues to ensure that the recommendations for independent living become a reality. The Government have made clear on many previous occasions that we are committed to the recommendations of the Strategy Unit report on Improving the Life Chances of Disabled People.
I will not go through all the preamble, but say categorically that we would expect the commission to continue the DRC's work on independent living and to work collaboratively with the proposed office for disability issues. That is an absolute expectation. We expect the commission to continue with that work. I hope that is a sufficiently positive and adequate reassurance that promoting independent living is part of the CEHR's remit under existing provisions and that the amendment is therefore unnecessary and can be withdrawn with safety and, I hope, jubilation.
I turn to the question that Clauses 10 and 20 stand part and Amendments Nos. 44, 46, 87, 94 to 98 and 158. They all concern Clauses 10 and 11 and whether we have addressed the issue of communities correctly. Let me spend a moment explaining where the clauses have come from and what I propose to do. To begin with, the amendments remove the terms "sub-group" and "sub-class" from the definition of communities and bring disabled people into the scope of Clause 11.
Let me start with Clause 11, with which the noble Lord, Lord Addington, and my noble friend Lord Carter are especially concerned. It retains the duty, currently with the Commission for Racial Equality, to promote good relations between people of different racial groups, but applies it across the breadth of the new commission's activities. We think that there are real differences between the issues raised by race and disability equality and are not sure that the concept of "good relations" is especially helpful to disabled people.
This was discussed during the passage of the Disability Discrimination Act, but I have not yet had time to read the debate in detail. My noble friend Lord Carter spoke then of the importance of action to tackle harassment and hate crime against and the involuntary isolation of disabled people—the point raised by the noble Lord, Lord Addington, under Amendment No. 87.
I well understand the issue of involuntary isolation. It is especially applicable to people with learning difficulties. We will want to consider that, because there is clearly more to be done on that issue. I commit to do that straightaway.
Clause 10 imposes a duty to promote understanding of and encourage good practice in the treatment of disabled people and places those duties imposed on the commission for the other strands within the context of disability. I have already discussed the need for the commission to be able to behave flexibly. Some aspects of the application of race equality—good relations—are relevant to disabled people.
Clause 10 also rolls forward the duty currently placed on the Disability Rights Commission to encourage good practice. We did not want to remove the good practice power that it has used to such beneficial effect unless we could be clear that it was fully reflected in the more generic duties of the commission.
The difference lies in the concept of communities, as I have tried to describe them. It is not always desirable or right to express the duties of the commission in exactly the same way for every equality strand. That was our approach in drafting Clauses 10 and 11.
Amendments Nos. 94 and 97 remove the terms "sub-group" and "sub-class". Many of us will be aware of the discomfort and disapproval expressed by some stakeholders because of the connotations of that terminology and their wish to remove it from the Bill.
Let me leave that to one side for a moment and turn to Amendments Nos. 95 and 98. It is important that the commission is empowered to tackle prejudice and to strengthen society and communities. As I said, we must ensure that we get those duties about right. I should like to look again at the group of amendments that we have just talked about, including Clauses 10 and 11, and the points raised about them. I have already indicated informally that there is work to be done and there is no resistance from government on that. We will try to capture the concepts that already exist, particularly those of the Disability Rights Commission.
I empathise absolutely with the aim of Amendment No. 112, which would preserve the status of the codes issued by the current commissions after the removal of the relevant functions. We want to achieve that but it is not necessary to amend the Bill because the existing legislation—the Sex Discrimination Act, the Race Relations Act and the Disability Rights Commission Act—provides that a failure to observe a code of practice does not of itself render a person liable to proceedings, and that the provisions of the code made by each of the commissions shall be admissible in evidence in a court or tribunal and must be taken into account where that is relevant. Clause 44(3), which deals with transitional arrangements and functions of the dissolved commissions, provides that a code of practice issued by the existing commissions shall continue to have effect until revoked or revised. My argument is very simple: sufficient legal mechanisms are already in place to ensure that the codes of practice are admissible in evidence. I hope that, on that basis, the noble Lord will not move his amendment.
Amendment No. 137 was spoken to very passionately by the noble Baroness, Lady Wilkins. I am very aware of the importance of that power for disabled people. That is why it has been included in the Bill. As we have said, there should be no regression from the powers of the existing commissioners. However, I cannot give my noble friend the detail that she seeks. We want to proceed on an informed basis when making decisions on the case for exercising that power. I am very alive to the Burke judgment, with which I lived for some considerable time during the passage of the Mental Capacity Bill, and to the credit that Justice Munby gave the Disability Rights Commission for its work.
We have carried forward the legislation on the basis that we will implement it having assessed the impact of the changes that we seek, and that we want the commission to provide the evidence and recommendations on that as part of its role of keeping legislation under review. I suspect that my noble friend will require further reassurance, so we will write to her to explain more of the detail and place a copy of the letter in the Library rather than take up the time of the Committee.
We have provided the new commission with an express power to intervene in human rights cases and we expect it to use that power as effectively as the DRC has done in cases relating to disability—for example, its intervention in the case against East Sussex County Council on fair lifting and handling policies, which were fundamental to promoting disabled people's independence, dignity and inclusion. The new commission will have a strong set of human rights powers which will serve the commission stakeholders well, including disabled people. I will write to my noble friend about when we will think about enactment of the other power.
My noble friend Lord Carter said that he would not go into the technicalities on Amendment No. 140. Sadly, I can, as my noble friend would have expected—I made sure that I understood it. I shall go through it briefly. An independent adviser who gives advice on settling a discrimination case must take out indemnity insurance. I shall go no further; that is the issue. At the end of my very long speaking note it says that the amendment seems very sensible and we would like to consider it further with colleagues. I hope that, on that basis, the noble Lord is happy that I will look at the amendment in more detail.
Amendment No. 167, tabled by the noble Baroness, Lady Darcy de Knayth, relates to the transitional role. We believe that the disability rights transition commissioner's role will be taken forward by the chair of the Disability Committee—we have already said that it will be a person who is either disabled or has had a disability—and the committee members. The appointment of the disability transition commissioner will cease when the committee receives its primary duties in respect of Clauses 8 and 10. That reflects the fact that the Disability Committee, which may include former commissioners from the Disability Rights Commission, will be operational by the time the CEHR opens for business.
I am not convinced that a triple arrangement for disability—a dedicated transitional commissioner, the requirement for a disabled commissioner, and the committee—is justified. It makes complete sense to have transition commissioners for the other commissions but we have already done the belt-and-braces work for the DRC. On that basis, I will resist the amendment.
The definition of "disability" is taken from Section 1 of the Disability Discrimination Act 1995, as supplemented by Schedule 1. It is:
"A person with a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
I hope that that is what the noble Lord, Lord Northbourne, seeks, and that the noble Lord, Lord Carter, will withdraw his amendment.
I am sure that we are all extremely grateful to the Minister for her typically full reply. On the definition of "disability", we could continue for another hour on the difference between the medical and social models of disability, but I shall not do that.
The grouping was intended to secure a single, well focused debate on the disability issues in the Bill. We have achieved that. The noble Lord, Lord Northbourne, referred to noble Lords interested about disability matters as "a lobby". We are not a lobby but just a group of humble toilers in the legislative vineyard.
I could not bear it if anyone reading Hansard thought that we agreed with my noble friend's description of himself as "a humble toiler".
The Minister is always extremely willing to meet noble Lords to discuss a Bill as it proceeds. We would certainly welcome a meeting before Report to have a constructive discussion on the matters that we have debated today, particularly the issues dealt with in Clauses 10, 11 and 20, the latter of which is perhaps the most important issue in the Bill.
Today's debate has emphasised that the Equality Bill, when it becomes law, will play a crucial part in securing civil rights for disabled people. Given the nature of the grouping, I do not intend to wind up the debate in the usual way, as there are so many issues to consider. We shall certainly want to read extremely carefully what my noble friend has said. I beg leave to withdraw the amendment.
moved Amendment No. 8:
Page 54, line 22, at end insert—
"( ) a Commissioner appointed under paragraph 1(1) who has experience of working with children,"
This comparatively small group includes Amendments Nos. 8 and 99, tabled in my name and that of the noble Baroness, Lady Howe. Both amendments refer to the problem of how children will deal with the commission. Amendment No. 8 states that,
"a Commissioner [shall be] appointed under paragraph 1(1) who has experience of working with children".
The basis for the amendment is simply that a lot of adult-dominated discussion takes place—especially if there is a room full of adults and they are not told to consult about children. It is not a conspiracy theory; it is simply a case of "What we do is normal and what we are is normal" and that depends on who is in the room.
Amendment No. 99 would make a more substantive change. It would place a duty on the commission to relate to children properly—that is to say, to provide information and so on. Of the two amendments, Amendment No. 99 is probably the big one. The old Jesuit model "The first seven years and yours for life" is a sound principle. It is probably a good thing if children know not only their rights but also their obligations to other groups. The imposition of that duty on the commission is very positive if it promotes the idea of respect for different groups and the need to address groups regarded as being outside the norm. I suggest that placing such a duty on the commission would probably be a positive thing. Indeed, it may be something of a pre-emptive strike, if it is correctly done.
At this stage, we are probing the Government to find out what, they think, will happen and how far their thinking is addressing the problem. I will be interested to hear the Government's response. If we get this right, we may well remove a good number of the problems that could occur later on. It is a bit like preventive healthcare: it is difficult to work up enthusiasm for it now, but it always pays off. I beg to move.
I have a question about Amendments Nos. 8 and 99. I am probably as concerned as anyone in the Committee about the well-being of children, but I do not think that you can consult children in a vacuum.
Rightly or wrongly, our society decrees that children grow up in a family and are, as far as is possible, brought up by their parents. If you create legislation that increasingly provides for children to be consulted without providing for consultation with their parents or their family, you send a confusing message to the child and to the parents.
There is perfectly good justification for consulting children. Older children have interesting and important ideas, and one needs also to hear the feelings of younger children, which are sometimes difficult to understand unless you know the children well. However, consultation with children, depending on their age, must be linked with consultation with parents and families. Otherwise, the children will get the wrong message that their parents and their family are not important and are not respected by government. Parents and families are increasingly getting the message that this Government believe in direct approaches to children, leaving families out of the picture.
The noble Baroness is nodding her head; I knew that she would. This issue is something to be aware of, so I suggest that, at the least, the amendment should say, "children and families".
I, too, support the amendments. Apart from anything else, it is crucial that the rights and interests of children, as children feel them, should be among the activities of the commission.
Amendment No. 8 would help to ensure that the commission had the expertise and vision to promote and protect children's human rights and deal with children's equality issues. Like many other organisations and bodies, the commission needs a high-level post holder with a special focus on and understanding of the needs of children. I fear that, without that, children rights and interests will be lost in the large new body. We must also remember that the English Children's Commissioner has less strength, let us say, than the other three commissioners.
Age equality is the strand that perhaps comes a bit later. It is expected next year. By then, it may be too late to squeeze children into the commission, so having a commissioner who has an interest in and knowledge of children—I do not suggest only that—will ensure that there is someone there right from the beginning.
I turn to Amendment No. 75. Equality and diversity are not adult-only concerns; they are central to children too. In October 2002, the Committee on the Rights of the Child, the international treaty-monitoring body for the Convention on the Rights of the Child, issued concluding observations on the UK. On discrimination, the committee said that it was,
"concerned that the principle of non-discrimination was not fully implemented for all children in all parts of the State party and that unequal enjoyment of economic, social, cultural, civil and political rights still existed, in particular for children with disabilities, children from poor families, Irish and Roma travellers' children, asylum and refugee children".
So, it is the whole range. I hope that the commission, when it is up and running, will seek to tackle some of the multiple forms of discrimination.
At the same time, it is important that the commission have a legal duty to inform children and raise awareness of equality and diversity issues, first so that children and their parents can be informed of their rights and secondly to assist children to understand and respect others. That was said by the noble Lord who moved the amendment. If we want children to contact and use the commission to help remedy discrimination, we must first tell them about their rights and duties.
With regard to Amendment No. 84, I would argue that a human rights culture cannot be achieved without the active engagement and education of children. The Commission for Equality and Human Rights will quickly become a body of expertise on human rights as well as equality. After all, it is the commission's job to promote human rights. It is imperative that that expertise includes children's human rights and that children and their parents, carers and advocates see that the body is working for them too.
Amendment No. 99 would put children into the Bill by addressing and making provision for their information and consultation needs. We cannot begin to expect the commission to serve children well, without placing a duty on it to inform and consult children appropriately about human rights and equality issues. Those are not luxuries; they are the minimum requirement for making sure that the commission works for children.
I rise with a certain diffidence because I got into enough trouble on the Children Bill with the children's rights organisations for brokering a compromise that allowed parents to smack their children in certain circumstances without committing a crime. I hope that nothing that I say now will cause further offence to that powerful and important lobby.
I would be grateful if the Minister could say whether my understanding of the Bill is the same as hers in this respect. It seems to me that the position is something like this: children are human beings and have human rights in the way that adults have human rights, except that they are children. As I understand it, under Clause 9, the commission is to,
"take account of any relevant human rights" in fulfilling its duties under Clauses 8, 10 or 11. Relevant human rights include not only the European Convention on Human Rights but, for example, the rights protected in international law by the UN Convention on the Rights of the Child. Therefore, the commission shall have to have regard to the rights of children, in particular, which are codified and enshrined in that important international treaty.
No doubt, the appointments will, to some extent, be sensitive to that, but the way in which the commission works will have to achieve the aims that noble Lords have pressed for in speaking to the amendments. If that is right, it would help me to understand the position.
I suppose, having heard what my noble friend Lord Lester of Herne Hill said, I am glad to be speaking after him, so that I can add my dissent to his view.
I shall speak only to Amendments Nos. 75 and 84. Children are the missing category in the Bill. We know from experience that children are often more conscious of diversity and less judgmental about it than adults. They really celebrate it. We all know from our personal experience, even though in some cases it might be some years ago, that familiar refrain from a child—"it's not fair". I would argue that this sense of fairness is the precursor to growing awareness of justice, which is the basis of equality.
But equality and diversity should not be left to chance. If the commission is to work for children, we must make that clear in the legislation. All we seek to do—perhaps I may remind my noble friend Lord Lester—is to promote an understanding of the importance of equality. These two amendments do not guarantee their rights, but seek to promote an understanding of those rights among children as a specially designated group.
Children require very distinctive and different communication strategies, which is why we want to do this. Educational programmes promoting equality and diversity to them will require information to be prepared in appropriate language and different formats, and to be disseminated to all the places which are familiar to them. That stretches beyond schools or, indeed, the family, to which my noble friend referred, and includes leisure centres, youth clubs, cinemas, libraries, hospitals, health centres and so on.
The point of the amendments is that if legislation explicitly requires the promotion of equality and diversity among children, the commission will have to recruit appropriately skilled and experienced staff and will have to communicate directly with them.
It is always particularly enjoyable when Liberal Democrats show their diversity of views. I wonder whether my noble friend follows what I seek to explain. If one looks at Clause 9, the commission has to promote,
"understanding of the importance of human rights", including the rights of the child, which will affect them. We have a Children's Commissioner who is meant to be doing all the other issues, which we debated at great length in a separate Bill. I cannot, for the life of me, see why one needs this clogging of the Bill with extra provisions, which is the point on which I seek enlightenment.
I fear that Members of the Committee will have to endure this private grief for a few seconds longer. In accepting what my noble friend Lord Lester has said, the existing clauses do not accept that the approach in dealing, in communicating and in promoting an understanding of human rights to children will be different from the approach that would apply to adults. In putting that in the Bill, the commission would have to recruit the appropriate skilled and experienced staff and communicate directly, which I was getting to when my noble friend Lord Lester intervened. I would argue that the likelihood of undertaking outreach work would be much improved. It is not a "do or die" situation. I am sure that I will not die in the last ditch for this. But I am trying to say that the likelihood will be improved if the duty is spelled out in the Bill.
Turning to Clause 84, an understanding of human rights is fundamental to notions of equality. Understanding the often conflicting and contradictory aspects of human rights comes through education and deliberation. While schools may well do sterling work in that area, they cannot of themselves be given sole responsibility for inculcating a respect for human rights in our future citizens who, as we become a more diverse country, will need to be ever more conscious of our common humanity.
If we want children to understand and respect human rights, we must make provision for that in this regulation. As the noble Baroness, Lady Howe of Idlicote, has already said, international law requires the promotion of human rights and Article 42 of the Convention on the Rights of the Child is clear about the need to disseminate that information to children.
All we are really saying in these amendments is that from the start children must be seen as a key stakeholder and beneficiary of the commission; that the promotional work of this new and vital body should be cutting edge and innovative; and that it should lead the way in demonstrating how a human rights and equality institution set up for everyone can have children at its centre.
My name is attached to Amendments Nos. 75 and 84 and I strongly support Amendments Nos. 8 and 99 tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Howe. I thought that we had already established that the voice of the child should be heard. I am rather surprised that the noble Lord, Lord Lester, finds it unnecessary to mention children. It is very odd that children are not mentioned in the Bill. I am very keen that they should be and we must make sure about that.
Children who have been consulted about the new body have shown great optimism and clarity on how it could achieve a better society. One child said that the commission should promote young people as equal members of society, while another urged,
"I believe equality is a good thing for the world to take on board and must be implemented to make all people and citizens of the world feel they should be treated equal—as they deserve to be—and action is taken to assure their feelings become reality".
So let us make it quite clear in the legislation that equality and diversity is a serious matter for children.
The noble Lord, Lord Lester, mentioned the Convention on the Rights of the Child. I know that Amendment No. 86 is not in the group, but it is important that it should be in the Bill. I think that it was the noble Baroness, Lady Ashton, who, during the passage of the Children Bill, agreed that the commissioner must have regard to the convention. I hope that she will agree that we must also have the provision in this Bill. So I await what happens.
I do not agree with the noble Lord, Lord Northbourne, that parents have got to be mentioned if children are. Children are people by themselves. They might not agree with their parents. Their voices are to be heard, not as part of the family in this case—important though the family is, as we are always hearing from the noble Lord, Lord Northbourne. I hope very much that the Minister will be sympathetic to these amendments.
I apologise to my noble friend. I nearly cut her off, but I had not seen her. Had I seen her, I would have known that she would speak on this—and quite rightly too. As my noble friend said in her remarks, there was a consultation with young people. It was conducted by the Department of Trade and Industry in partnership with the Children's Rights Alliance. One hundred young people aged 14 to 19 were consulted on the idea of both the commission and the White Paper.
I gather—and this is why I smiled when the note appeared—that one participant described it as "the most boring day of my life". Something that I love about young people is that they tell you like it is. There is no mealy-mouthedness about them. We want to see the active involvement of children and young people in this context as part of the beginning of the commission's work and it is something that we want to see actively continued. They are important in that context.
As regards the interesting little debate on the Liberal Democrat Benches between two noble friends, I tend to take the view that the noble Lord, Lord Lester, put forward. As the noble Lord said, in the Bill children and young people have human rights. They are people and they are therefore covered. As noble Lords will know, if they are already covered, there is no need to put them in again. When looking at Clause 9(2)(b), "other human rights", the example that I was given by the officials when I asked them to explain it to me was the UN Convention on the Rights of the Child. There is no disagreement between the Government and what is being sought here. It is simply that the vast majority of it is already achieved because it is already in legislation.
There will be a Memorandum of Understanding between our new Children's Commissioner, Al Aynsley-Green, who has just taken up the post, and the commission to make sure that we do not leave anything out. In other words, children are to be fully represented and supported in the work that the Children's Commissioner will undertake and the work of the CEHR. They will complement and strengthen each other in the best possible way.
Turning briefly to the group of amendments, with regard to Amendment No. 8 the Secretary of State is required to look at knowledge and experience when appointing commissioners. We would expect those to include knowledge and experience of issues relating to children and young people. Therefore those requirements are already covered.
On Amendments Nos. 75 and 84, the commission has a duty to promote good practice in relation to equality and diversity and to promote equality of opportunity. That already includes children and young people, as do the duties relating to human rights and encouraging public authorities to comply with their human rights obligations. Noble Lords will know that issues of violence linked to racism and the education and support of children with special educational needs are important areas which, between the Children's Commissioner and the commission, will be looked at with enormous interest and, I hope, to good effect.
Amendment No. 99 addresses communication with children. We have already talked about the independence of this body. I believe that we must allow the commission to develop its own mechanisms to ensure that all its stakeholders, including children and young people, are consulted with and engaged wherever appropriate in the commission's work. But that means recognising that there will be differences in the work undertaken by the commission. I am not sure that age equality would take us very far because children are different. A lot of the age equality work is for those between 18 and 118 and does not address the specific needs of children and young people. However, I accept that the way in which they are dealt with is of great importance; that is, making sure that such communication is effective. The same is true for people with learning disabilities. We need to think of means of communication that are as effective as possible.
The simple argument put forward by the Government is that we agree with the principles behind these amendments, but we do not feel the need to prescribe them in legislation. Given what I have said about our expectations of the commission and what is already covered in the legislation, I hope that the noble Lord is fully reassured and will agree to withdraw his amendment.
I thank the noble Baroness for her response. I feel a momentary empathy with the Government Front Bench when a divergence of views comes around. The noble Baroness has just had occasion to look behind her.
It is a fact that there is very little disagreement between us. Indeed, when I said that I was probing to find a way forward here, it is the right path. Everyone agrees that the work should be done. Perhaps the noble Lord, Lord Northbourne, disagrees slightly in that he thinks that the family is the prime unit. I would say that the main job of the family is to allow young people to participate in the discussion. Also, if the family is dysfunctional and provides only a biased viewpoint or, indeed, endorses discrimination, someone has to put the case for the other side. We must talk directly to children on a level which they can both understand and relate to.
If I heard the noble Baroness aright, she said that this work should be done and the powers are in place to do it, but that it is for the commission—once it has been set up—to decide how it will deliver.
This work is already provided for in the legislation and therefore it will be done. My argument is that I do not want to prescribe how it will be done.
The intention of this amendment, tabled in my name and that of my noble friend Lady Gibson of Market Rasen, is to ensure that trade unions and employers' organisations are represented on the new commission. As I am sure everyone realises, work plays a major role in most people's lives. People are concerned about access to suitable work, their prospects when they have it and their treatment at work by both managers and fellow employees. I agree with the Government when they tell us that work is the way out of poverty. In many cases, unions are there at work to represent employees' interests.
This was acknowledged by previous governments when the present, soon to be former, commissions were established. I was myself a nominee by the TUC General Council on the Equal Opportunities Commission. Employers' representatives are also present by nomination. Of course access to services is important and is dealt with elsewhere in the Bill, but work is of such overwhelming importance in the lives of most people that it is essential that organisations with a knowledge of what it is all about are represented on the new commission and should be there as a matter of right rather than at the discretion of the Secretary of State.
Certainly, once the commission really gets going, much casework is bound to concern rights at work. I have been approached by the TUC, which is concerned about the failure of the present Bill to mention any possibility of it being represented. I look forward to a sympathetic response and I beg to move.
My name is attached to this amendment and I should like to add a brief word to what my noble friend has said. I, too, represented the TUC for nine years on the Equal Opportunities Commission, on which the CBI was also represented. So I hope that consideration will be given to the question of representation of both the TUC and the CBI. There is no doubt that the new body will consider industrial relations and employment issues. I believe that it would be advantageous to continue with the current position of ensuring representation of both employers and employees on the new body.
I want to stress that the relationship with the Equal Opportunities Commission was not an adversarial one. On many occasions both sides of industry were able to give examples of what happened in employment by drawing on their direct knowledge of the workplace. I know that the commission believed that the combined knowledge of the two sides of the coin brought an added impetus to its work. My noble friend may say that the provision is implicit in the Bill, but I want to ensure that it is made explicit, as is currently the case in Ireland. I hope that she will consider the amendment.
I support the amendment. My noble friend has made a case for the nomination of commissioners. I understand that to mean people being nominated for selection, but the amendment has been moved in rather stronger terms. However, it is a modest amendment.
The reason for nominating such people is that we have had a special experience in regard to discrimination and equality at work. Employment is a very tender relationship. Although some might think that it has become complicated, in fact this may be an area where the law has enjoyed some success—not only in statutes, which are voluminous enough, but also in judicial case law in the understanding of concepts of discrimination—both direct and indirect. I cite also the experience of the European Union. That has come to bodies which have on them representatives of both employers and employees mainly through the CBI and the TUC. They draw on the roots of their special relationships and from the particular experiences they can bring to this tender area.
Clause 15 states that codes of practice are to be dealt with by the new body. That is natural enough, but codes of practice, or what people sometimes refer to as "soft law" provisions, are very important indeed in this area. If those codes are to be amended in areas where we have experience of discrimination, such as in sex discrimination and race relations, it would be a great advantage to the new commission to fit in with the experience of those who have seen what happens in the area of employment.
The new commission will not arrive with a blank sheet of paper; it will arrive into a society which has a great deal of experience of discrimination and equality in the area of employment. I hope that the Minister will at least welcome the notion that those who have such experience and who are expert in the area should, on all of these bodies—judicial, administrative and many others—be considered, at least, for nomination to the new commission.
"In appointing Commissioners the Secretary of State shall have regard to the desirability of their together having experience and knowledge relating to the matters in respect of which the Commission has functions including, in particular".
So it does not relate only to this area. The experience and knowledge that some people have is often more useful than that of someone simply nominated from an organisation. I know that the CBI does not welcome the idea. The way in which the Bill is written will cover the appointment of such people if the Secretary of State considers it necessary.
I agree with the noble Baroness, Lady Miller of Hendon. My memory is that we did not include this in either the Sex Discrimination or Race Relations Acts, even though there were and are commissioners with a great deal of experience of employment, both from trade unions and employers. I agree entirely that this is not a necessary matter. Obviously when a code of practice that affects employment is being drawn up there will be consultation with employers and trade unions, which will play a key role.
What has been said by the noble Baroness, Lady Lockwood, applies here too. We should not fetter the commission in this way. I do not support the amendment.
We are all agreed on the broad principle that the commissioners should reflect experience and expertise in these areas. I think everyone is quite comfortable with that. My noble friends bring a wealth of personal experience and knowledge of the long and proud history of the trade union movement in this area. We want the commission to make good use of that expertise and experience. Indeed, it will need to if it is to succeed in its mission.
Equally, I have absolutely no doubt that if the commission is to be successful a deep understanding of the day-to-day pressures experienced by business—and especially by small and medium sized businesses which often have a limited capacity to understand, assimilate and implement the law—will also be critical.
Indeed, we shall not be able to identify effective ways of engaging with people unless we take innovative approaches based on the knowledge and experience provided by those who have expertise in the trade union movement and in business. That is why we have provided in paragraph 2(1) of Schedule 1, to which the noble Baroness, Lady Miller, referred, a requirement to,
"have regard to the desirability of their [the commissioners] together having experience and knowledge relating to the matters in respect of which the Commission has functions".
I agree with the noble Baroness, Lady Miller, and the noble Lord, Lord Lester, as we have discussed already in our debates, that this is about not fettering the way in which the commission needs to be set up and the expertise and experience that needs to be brought forward. The Secretary of State will need to ensure that trade union and business interests are properly reflected in the commissioner appointments. That is well understood within the basis of what I have already said about the Bill.
Inevitably, of course, the amendment would cause some technical difficulties. However, my noble friend has indicated that she is probing—certainly at this point—to see what the Government's response will be.
My noble friend will know, too, that I have already indicated that I will try to avoid lists of any kind, for the reasons that I have given. If we were to insert a reference to trade unions and/or business into the Bill, it is highly likely that a number of other people would feel equally that they had some contribution to make—indeed, they would have merit in so doing—and we would inevitably end up with a list. We should avoid that at all costs if we possibly can.
So, within the context of understanding entirely the concern of my noble friends to ensure that we use the experience and expertise of the trade union movement and recognise its contribution and the contribution of business, we would expect that to be taken into account by the Secretary of State. It is an integral part of the way in which we have set up the legislation. I hope that on that basis my noble friend will feel able to withdraw her amendment.
I thank my noble friend for her response. I am not really surprised that the noble Baroness, Lady Miller, did not agree with the amendment, although I am rather surprised that the noble Lord, Lord Lester, took the line that he did. I know very well that he had experience of the EOC when it had a great deal of representation from trade unions. He was, of course, actively involved in a number of important employment cases, so I am rather surprised that he took that line.
However, I am glad that my noble friend has given an assurance that trade union and business interests will be respected. I know she understands that trade unions have a great deal of experience to offer in this area. This experience should be utilised by the new commission and used on behalf of people with experience of the kind of casework that is likely to arise.
I am sorry that it has not been found possible to include something in the Bill. I shall consider carefully what my noble friend has said today. In the mean time, I beg leave to withdraw the amendment.
Amendment No. 19 is a probing amendment for Amendment No. 20, which seeks to ensure that decision-making committees specialising in gender and race relations will be established by the commission and shall include persons with knowledge of these areas.
In the Second Reading debate I indicated that I had not originally been in favour of an overarching commission responsible for all kinds of discrimination. This was based on my experience as an EOC member. But I realise that since I was a member attitudes have tended to change and there now seems a general consensus on the idea of an all-embracing CEHR.
Nevertheless, both the EOC and the CRE did a great deal of very good work. In so doing, they built up a formidable amount of expertise in their own particular areas of operation. I see from a briefing that I have from the Mayor of London that he seems to agree with me. He states in his briefing:
"All equality areas are unique, facing different challenges and threats".
He also pointed out that Part 5 of Schedule 1 establishes a disability committee. Of course, the amendments we debated earlier today—particularly Amendment No. 55—sought to deal with other equality strands in a rather more complicated way than is suggested in my amendment, which attempts to deal with the criticism and to build on the experience which is already available from the former commissions.
Of course it does not go as far as the mayor's briefing. It reflects what was outlined in Amendment No. 55 but does not spell out in detail any requirements with regard to establishment. It indicates ways in which the work already done on gender and race might be utilised and built upon for the future.
My noble friend will undoubtedly say that the commission will obviously have the right to establish such committees as it thinks it ought to have in order to do its work, but the work that has already been done on gender and race is so important that it should be written onto the face of the Bill so that the commission starts off with a requirement to make use of that experience, and to do so by way of the establishment of these committees. I beg to move.
My noble friend will not be at all surprised by what I have to say in broad terms. I hope that some of the points I make will be relevant to why this debate has arisen. Paragraph 12(1) of Schedule 1 makes sure that we give the commission the freedom and flexibility to determine its own structures. I have talked about the three themes of the day—independence, freedom of action and lists. This proposal comes under freedom of action as it would enable the commission to determine for itself what it wants to do.
It is very important, if we are to make this body effective, to give it operational ability to choose how it will determine its work to some degree, which includes setting up appropriate committees. We cannot predict what the challenges and priorities of the new commission might be for the future. It might choose to do a specific piece of work and, as a result, establish a committee to bring together particular experience or expertise.
The commission will no doubt want to create committees for specific purposes. I do not think that we can legislate for committees which do not have a clearly defined or specific purpose. That would be the effect of Amendment No. 19, although I accept that it is a paving amendment.
I am very concerned that we avoid silo management in the Bill where at all possible. One of the great value-added benefits of a new single commission is the ability to bring a new and inclusive approach to promoting equality across the different areas. So establishing a statutory race or gender committee at this point, with delegated functions, in advance of that full debate about what needs to happen would, in my view, run counter to the goal of maximising the benefit of bringing the commissions together. In fact, one could argue that there is little point if we simply recreate within the structures exactly the same processes or organisational structures that we have now.
I think the proposal stems from a genuine concern at the heart of setting up the new commission, which is that we do not dilute the work or the critical nature of the issues, particularly, as my noble friend has indicated, on race and gender. Of those two, the issues on race equality are particularly pertinent.
As I said at Second Reading, race equality must be at the heart of planning the new commission, particularly in that period before the work of the Commission for Racial Equality fully transfers to the new commission. We want the CEHR and the Commission for Racial Equality to work together very closely to make sure that this is done effectively.
I hope that as we design and develop the new commission and as it takes its place in 2007, the fears that I understand noble Lords and others have that the issues are not diluted will be fully addressed. I make a commitment to ensuring that my colleagues who will be responsible for this understand and undertake to do that. I think that will go quite some way to addressing what lies behind the needs of noble Lords who want to see the representation of particular committees in this way.
The three commissions have been trailblazers and we must not under any circumstances lose the work they have done in their own distinct areas. It is very important that we capture it and move it forward. If we fail to do that, we will hamper the new commission.
If the commission decides that it wishes to have its own committee on race or gender issues, it can already do so under the Bill. On the basis that we should not restrict what the commission does nor second-guess its desire to set up committees appropriate to the work it plans to undertake, I hope that my noble friend will feel able to withdraw her amendment.
I thank my noble friend for that very helpful response. I understand that there is a need to have some flexibility, and we do not know what issues may arise in the future which may require the establishment of internal committees. The commission will have the opportunity, if it wishes, to establish suitable committees once the CEHR is properly established.
I also welcome my noble friend's assurance that it is not the intention to dilute the issues of gender and race and that the commissions will have to work very closely together in the transitional period to ensure that the experience that has been gained is not lost. I also welcome my noble friend's personal commitment to that end. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 25:
Page 58, line 30, at end insert—
"The power under section 18—
(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Scotland Committee in so far as it concerns the making of grants for the purpose of exercising any of the powers treated as delegated to the Scotland Committee in accordance with paragraphs 21 and 22, and
(b) to that extent shall not be exercisable by the Commission."
In speaking to Amendment No. 25, I shall speak also to Amendments Nos. 26, 31, 32 and 38. I greatly welcome the devolution provided in the Bill to the Scotland and Wales committees and hope that these amendments will give Scotland and Wales even more devolution.
The commission can choose to delegate any of its functions to any decision-making committee as set out in paragraph 15 of Schedule 1, and this includes the Scotland and Wales committees. However, the Bill specifies delegation of certain powers to the Scotland and Wales committees, and these delegations cannot be reversed by the commission. However, in the Bill, only some of the promotional powers are delegated to the Scotland and Wales committees.
Paragraph 21 of Schedule 1, which refers to Scotland, and paragraph 29, which refers to Wales, delegate the powers under Clause 14 to publish information, undertake research, provide education and training and give advice or guidance. The power to subcontract such work to other people or organisations is included in the delegation. However, the power under Clause 18 to award grants to other organisations to do or assist in any of the delegated functions is at present excluded from the delegation to the Scotland and Wales committees.
The CEHR will probably rely heavily on co-operation and joint working with others. It is very likely that the commission will want to provide grant aid to voluntary organisations to assist with its promotional work under Clause 14. Most of the voluntary sector in Wales and Scotland is separate and independent. It is inconsistent to delegate to the Wales and Scotland committees the power to subcontract delegated Clause 14 work to such other organisations but not to delegate the powers to give grants to carry out delegated Clause 14 work.
Amendments Nos. 25 and 31 delegate grant-giving powers under Clause 18 to Scotland and Wales committees but only in so far as the grant-giving is for the purpose of carrying out the other powers already delegated to the committees. Thus the amendments would not affect the power of the commission at GB level to control grants for any purpose that is not already delegated to the Scotland and Wales committees under the Bill.
The powers under Clause 21 include monitoring kinds of crime affecting certain communities, prevention and reduction of crime affecting certain communities and activities designed to involve members of communities. These powers are intended to support the commission's duty under Clause 11 to encourage understanding and good practice in relations between communities and to work towards the elimination of prejudice, hatred and hostility against communities.
"Communities" in Clause 11 means "equality communities"—that is, communities of people defined by their age, gender, transsexual status, race, religion or belief, or sexual orientation. The powers in Clause 21(2)(a) and (b) to monitor crime and take action designed to prevent and reduce crime will be used to address types of crime affecting specific equality communities—for example, racist, sectarian, Islamophobic and homophobic hate crimes such as assault, vandalism and harassment. The power to arrange community activities which Clause 21(2)(c) gives to the commission will support its duty to encourage good inter-community relations.
The nature of crime which affects communities, in particular hate crime, varies in different parts of the UK. The same is true for the other problems affecting community relations. It is vital, therefore, that the commission's powers are exercised with a full understanding of the nature of the different problems in Scotland and Wales.
The commission will usually be exercising the Clause 21 powers in co-operation with other bodies; for example, the police, local authorities and voluntary sector bodies. The public bodies concerned are devolved in Scotland and Wales and operate under a different statutory framework. They have different statutory equality obligations under the Scottish Parliament's pubic sector legislation and under the Government of Wales Act. Most voluntary organisations in Scotland and Wales are separate, and the umbrella organisations for the voluntary sector are specific to Scotland and Wales.
In Scotland, the criminal justice system, criminal law and criminal procedure are devolved to the Scottish Parliament and Executive. They are all very different in Scotland. Race hate crime, in particular, and other hate crime law, which is of particular relevance to Clause 21, are very different in Scotland from that in the rest of Britain. The prosecution and courts systems operate in a very different way from the rest of Britain, and the police are separate and devolved. Although criminal law in Wales is not devolved to the Welsh Assembly, Welsh police and local authorities will be key partners of the commission in addressing hate crime, both through the criminal justice measures and other means such as ASBOs. For all these reasons, the powers under Clause 21(2)(a) and (b) to monitor, prevent and reduce crimes should be delegated to the Scotland and Wales Committees, since those committees, rather than the commission at British level, would have the required expertise on criminal law, criminal justice and the nature of crime affecting communities in Scotland and Wales, as well as links with other agencies.
The "communities" powers, which are sometimes referred to as "good relations" powers, are new for most strands. The powers do not relate to employment or provision of services, but to the way people live together. They are designed to reduce hate crime and conflict between different groups based on their identity and to promote harmonious communities. These are promotional powers rather than enforcement powers. The other promotional powers are being delegated to the Wales and Scotland Committees.
The communities to whom they apply are likely to be different in England, Wales and Scotland. In England, much of the focus is likely to be on places where there are very large, impoverished and disenfranchised ethnic communities, where problems manifest themselves perhaps through excessive violence on the streets, major police interventions, and a lot of media and political attention. The problems in Wales may be different; for example, rural racism or homophobia, where numbers are small. They may involve victimisation, isolation, social exclusion and may not attract media and political attention in the same way.
There may be a danger of these issues, as they manifest themselves in Wales and Scotland, being overlooked if priority decisions in relation to the "communities" powers are not delegated. I hope the Minister understands that explanation. I am trying to describe all the differences between England, Wales and Scotland. We are not just mirror images of each other. That is the point that I am trying to make.
I turn to Amendment No. 38, which calls for full-time posts. At present, the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission each has a commissioner for Scotland and a commissioner for Wales. Although these are not full-time posts, all six commissioners devote a great deal of time to their commission. The Bill proposes that the Commission for Equality and Human Rights will have a single Scotland commissioner and a single Wales commissioner. This is one of the areas of greatest concern for stakeholders in Scotland and Wales. I asked the Minister a question about it at Second Reading and she answered that she believed that the commission would decide that.
There is a real fear that the Wales and the Scotland commissioners will simply be overloaded with work in setting up the new bodies if they were just part-time appointments involving perhaps two or three days a month. The roles are so important that the Scottish and Welsh commissioners should be full-time appointments. Even then, the two commissioners will rely heavily on the other members of their countries' committees. I hope that the Minister will take note of this. The commissioners should be able to devote at least 200 working days to the commission.
I move the amendments in a spirit of devolution. We recognise that the Government have given us devolution in Scotland and Wales, as well as in this Bill, but, as usual, we would like a little bit more. The amendments are seeking this in the best interests of the Welsh and Scottish people. I beg to move.
I shall be very brief. The noble Baroness was right to identify a number of issues for which we need some explanation. I do not intend to get involved in a discussion about the powers of the Welsh Assembly or the Scottish Parliament. I was delighted to receive just a few minutes ago an "Easyread Guide" to the Equality Bill. I wish that more parliamentary Bills were written in the same language so that we could understand them much better.
The Bill states that the Scotland and Wales Committees will always be part of the commission. The commission consists of 10 to 15 members, according to the clauses before us. If these committees are going to be part of the main commission, what is the membership that we are we talking about? Does it include the members of both the Scotland and Wales Committees? That would mean that we are talking about a much larger commission than one of 10 or 15 members. It would be helpful to know about that. It would helpful to know also, if the accountability of the Scottish and Welsh members rests with the main commission, what happens with devolved matters?
I warmly support Amendment No. 31. The argument in support of the amendment applies with equal force to the Scottish amendment.
The commission will have six duties under Section 14, and they have been named by noble friend Lady Gale. They are delegated by paragraph 29 of Schedule 1 to the Wales Committee, and I welcome that. But the commission's power under Section 18, to make grants to a third party in pursuance of any of the duties under Section 14, has not been delegated to the Wales Committee. Without the funding, how can the powers under Section 14 be exercised?
I turn to Amendment No. 32. The general duties of the commission in Sections 11 and 21, to promote understanding and encourage good practice, are not delegated to the Wales Committee. Wales has often been described as a community of communities. I should have thought that there could well be circumstances where the Wales Committee would be well placed to promote a better understanding between elements within the community. I do not think that I need to elaborate on that. But I would be interested to learn from the Minister the reasoning behind the non-delegation of Section 11 and Section 21 powers to the Wales Committee.
I had not meant to speak to this amendment, but having heard my noble friend Lady Gale move it, I should like to say that my experience on the Equal Opportunities Commission showed me how hard the Scottish and the Welsh representatives on the commission worked and how hard the two offices in those countries worked. So I have some sympathy with my noble friend's viewpoint that there may need to be a full-time person in each country who looks at the considerations of that country.
Stakeholders in Scotland and Wales have been very strong advocates of the commission. We have developed good open relationships with them, which I am delighted about. They have been extremely helpful.
In Clause 14 there are a raft of promotional powers, which give the committees that we are setting up—and I shall talk about the membership of the committees later—the freedom to decide their own work programmes with regard to campaigning, identifying research, guidance and advice and providing education and training, or contracting other people to undertake any of those actions in so far as they affect the people in Scotland or Wales. The committees will also be able to monitor devolved legislation and provide advice to the devolved governments on the effect of the legislation. That is an important part of their work.
I am grateful to the noble Lord, Lord Dholakia, for having read the "Easyread" guide, which I hope noble Lords will see filtering in over the next little while. It is a good example of government doing something important. I am very proud of it and commend the officials who produced it for us.
The noble Lord raised the point about the way in which the committees will work. The Scottish and Welsh commissioners will chair the committees and sit on the main board, but the committees will be made up of other people brought together in Scotland or Wales to take on the work that needs to be undertaken. So they will not be part of the 15 commissioners; they will be separate. What I do not have is the detail about the numbers of the committees, but I shall expand on the subject for the noble Lord, Lord Dholakia, and my noble friend Lady Gale, so I can say a little more about precisely how it will work.
With regard to funding, the noble Lord, Lord Prys-Davies, will know from what I have said already that we do not want to hamper the commission by going into too much detail on funding. We want to ensure that we have given it a budget, which is a 40 per cent increase on the combined budgets of the three commissions as they currently stand. But the detail of how those budgets are to be spent will be part of the strategic plan and part of how the commission does its work.
Does that mean that, under Clause 14, the Wales committee will have power to undertake research or have power to arrange for a person to undertake research? Can my noble friend confirm that the Wales committee will be in funds so that it can finance the research or give a grant to enable a third party to undertake the research?
In terms of promotional activities, that is right under Clause 14. In the Bill more generally there is nothing to stop the commission delegating powers or particular projects to the committees, if it wished to. In other words, what we are trying to do is set out the things we believe it is important to cover for the committees, while leaving it open for the commission to determine what it wishes to delegate, for all the reasons I discussed at some length earlier in our debates.
I shall just deal with the specific amendment, so I can make sure that I have covered all the points made by my noble friend Lady Gale. The commissioners appointed for Scotland and Wales will have a very important role to play, not only in their role as chair of Scotland and Wales committees but more generally on the commission itself. We do not underestimate the amount of time that they will have to spend in these crucial areas, but I do not want to prescribe before we have a commission and before the chair is appointed what the role and the nature of the involvement of the commissioners should be. We will, of course, consider these issues carefully and consult the chair at the appropriate time. I take on board the points made by my noble friend and by other Members of the Committee who talked about the value of the commissioners currently working in Scotland and Wales and the importance of their role.
I have just been given some additional information on the point that the noble Lord, Lord Dholakia, asked me about. The size of the Scotland and Wales committees is not specified; their membership can be as big or small as is necessary. Again, it is partly for the commission to determine. The appointments to the committees' membership will be made in consultation with the devolved administrations, as my noble friend would expect.
As I have said, there is nothing to prevent the commission delegating powers or particular projects to these committees, as the commission sees fit. That fits with everything I said earlier about ensuring that the committee is not fettered in the way that it does. We would expect that the committees would work closely with the commission in awarding grants, particularly in Scotland and Wales. That goes back to a point that my noble friend Lord Prys-Davies made about money. Paragraphs 20 and 28 in Schedule 1 ensure that the commission must consult the committees before exercising any function, such as awarding grants, that may affect people in Scotland and Wales.
We expect that the commission in Scotland will give effect to the communities duty in a way that is relevant for the Scottish context. As my noble friend Lady Gale said, that means working closely with the different community-based organisations and statutory agencies that are relevant in Scotland and Wales. I take my noble friend's point about not being a mirror image, which is important in that context.
On the basis that we have the committees set up appropriately, because the flexibility still exists, and the chairs of the committees will sit as part of the commission itself; and because we are in good dialogue with the devolved administrations to ensure that they are fully consulted and involved, and the delegation is available to the commission as it sees fit; and because in Clause 14 we have covered some of the issues around promotional activity, I hope that my noble friend will feel comfortable enough to withdraw her amendment.
I thank the Minister for her reply, and thank too the noble Lord, Lord Dholakia, and my noble friends Lady Gibson and Lord Prys-Davies for taking part and for their support for the amendments. Again, I thank the Minister for her clear response. Although she was not able to let me have everything that I wanted on this occasion, I am sure that we shall have further discussions as the Bill goes through its stages. I beg leave to withdraw the amendment.
Amendment No. 57 would delete the words "creation of a society" and replace them with words more consistent with a parliamentary democracy. The first 20 words of the clause contain a provision which has major constitutional and legal implications, caused by the unnecessarily rhetorical terms in which it is couched. It says:
"The Commission shall exercise its . . . functions with a view to the creation of a society".
It is not the function of any unelected government-controlled quango to create any form of society, however worthy. It is for Parliament and for Parliament alone—perhaps especially the House of Commons—to do any form of social engineering for which the electorate has given it a mandate. The power that the Government, in the extravagant language of this clause, are prepared to take away from Parliament and to give to their own creature, the super-quango, is in our view unprecedented. Members of the Committee should not agree to a concept whereby the Government casually hand over a function of Parliament to some outside body not directly answerable either to the electors or even to Parliament. This outside body will consist of 10 to 15 commissioners whom the Government will appoint, whom the Government will pay, and who will possibly effectively hold office at the Government's pleasure, but who, as I said, will not be directly answerable to Parliament.
I emphasise unequivocally that Amendment No. 57 does not—I repeat, does not—seek to detract from objectives (a) to (d) as set out in the clause, which we broadly welcome as my noble friends made clear when the Bill was introduced in the other place. But we do have a view on objective (e), to which I shall refer shortly when I deal with that amendment.
Apart from the major constitutional problem to which I have just referred, I believe there are also serious legal implications. But before I explain that I should remind your Lordships that when my noble friend Lord De Mauley referred to this matter in winding up the Second Reading debate, the noble Lord, Lord Lester of Herne Hill, intervened to describe my noble friend's point as "baseless and legally illiterate".
I have to say that I was much aggrieved on behalf of my noble friend. I should hope that as a newcomer to the Front Bench he would be treated with the courtesy that usually prevails in your Lordships' House, rather than being assailed by such a vehement intervention. I wrote to the noble Lord, Lord Lester, to extend to him the usual courtesy of telling him that I would be referring to his intervention today. I am glad to see that he is in his place.
The noble Lord did reply to my letter, insisting that the problems that we see do not in his opinion exist, even though I made him aware that we had three separate legal opinions to support the view we took and which we still hold. In addition, I should tell the Committee that the noble and learned Lord, Lord Ackner, who was not able to stay so long this evening, has authorised me to say that he certainly concurs with our view.
I have to apologise to the noble Lord, Lord Lester, and to the Committee for answering in advance the arguments that he has not yet formally made to the Committee, but I have to do so because of the order of debate. I say to the noble Lord, with the greatest possible respect, that we believe that he is mistaken.
I emphasise again that we are not condemning the whole clause; we simply object to those words about the "creation of a society". It does not merely empower this new super-quango to create a new form of society; it actually instructs it to do so, telling it that it has a "fundamental duty". That has a very serious legal implication as well as a constitutional one. Practically nothing that the commission might conceive of doing—so long as in good faith it believed, or claimed it believed, it was in performance of that fundamental duty—would, on the basis of the advice we have received, be ultra vires.
The CEHR has under this clause virtual carte blanche to do almost anything; so it can, with its hand on the commissioners' respective hearts, claim to be fulfilling in good faith its "fundamental duty". That will in turn mean that, short of a decision which the courts rule was so totally irrational that no reasonable person could have made it, the courts would be powerless to intervene.
Those of your Lordships who do not have the advantage of the vast legal knowledge of the noble Lord, Lord Lester, should understand that it is not enough for the court merely to say that it would not have done the same thing. The act or decision has to be totally irrational.
In February 2003, the noble Lord, Lord Lester, introduced his excellent Equality Bill. That Bill received support from all parts of your Lordships' House but foundered, as do so many Bills which emanate from here, because the Government did not give it sufficient time in the other place. That is a pity because it would have met the noble Lord's objection that setting up this new commission before a comprehensive single equality Act would be, in the noble Lord's own words, "putting the cart before the horse".
The reason why I am referring to the past history of the Bill promoted by the noble Lord, Lord Lester, is to draw attention to the language—the moderate language—of his opening clause, which I should like to quote. It says:
"The purpose of this Act is to facilitate both the promotion of equality and the elimination of unfair discrimination".
What a contrast with the flamboyant language of the present Bill. There is nothing there about "creating a new society". It is those words to which we object. The reason why we do so is that we believe that the commission could do anything it chose to do in furtherance of that so-called "fundamental duty" without recourse being available to anyone who is aggrieved.
Even if—like the noble Lord, Lord Lester—your Lordships do not entirely agree that the clause is a virtual blank cheque to the CEHR, I believe that this Committee should not take the risk that the commission may come to believe that it does have one, or that when some act or other of its is challenged in the courts the judge will rule that it has such a wide mandate that he cannot intervene.
I should like to pray in aid of my argument the authoritative opinion of none less than your Lordships' Constitution Select Committee, which, in a letter to the Lord Chancellor dated
"This is a language of generality and depth that is seldom found in Acts of Parliament, and their interpretation will require the making of far-reaching and sensitive decisions that will turn on the commission's political, social and cultural perceptions. When made by Parliament or by Ministers, such decisions are subject to established forms of democratic accountability. If these decisions are to be made across a broad field by an autonomous or semi-autonomous commission, questions arise as to the commission's accountability".
There you have it.
The Constitution Select Committee has sounded the same strong warning as I do on the undesirably wide powers that the clause grants to the commission and the difficulties there would be to hold it to account. The moderate amendment that I propose to the preamble to the clause to rectify this defect does not, as I said in opening, detract from the principles of the clause. All the amendment does is to alter the commission's fundamental duty from "creating a society" to one of implementing the will of Parliament. I seriously doubt whether anyone can object to that basic concept. I beg to move.
It may be of convenience to the Committee if we discuss my amendment at the same time as it covers virtually the same point.
I agree with my noble friend Lady Miller; I am deeply worried about the wording used in Clause 3. The wording is,
"the creation of a society".
Those are huge powers—to create a society in which various things are going to happen. As my noble friend said, it is not for quangos to make society and not for the Government to create a society. She said that it was for Parliament to create a society. Actually, I do not think that it is. It is people who make society.
When you create a society, you mould people into a various shape. As I suggested at Second Reading, you mould people like dough and create a certain shape—the shape that the Government want, or that this body wants. I believe this is very dangerous stuff. History is littered with people who wanted to create various societies. One has only to consider Hitler. Before anyone jumps down my throat I am not suggesting for one moment that the Government are behaving in the same way as Hitler did. I am merely saying that, like many other people, Hitler tried to create various societies. As I say, this is a very dangerous measure.
We are all individuals. We all have different perceptions, abilities and outlooks. Some people are good, some are bad, some are indifferent, some are clever, some are stupid, some are kind, some are arrogant and some are offensive. We all make up society. I do not think that we want to be moulded into a society of someone else's choice. At Second Reading I expressed concern about this matter. The noble Baroness was kind enough to write to me. However, I am bound to tell her that her letter did not allay my fears at all. She wrote:
"You also expressed concerns about the CEHR's fundamental duty set out in clause 3. Clause 3 describes the outcomes for society we want".
I return to the point made by my noble friend; namely, that I do not think it is right for governments or quangos to create societies. You can have ideas and you can encourage the carrying out of those ideas, but in my view you cannot create a society.
I do not like the words "fundamental duty". I wanted to table an amendment to remove those words as they constitute a very strong expression. However, I was told that I could not do that. I thought that was very odd. I thought that if someone had written something into a Bill, someone else could take it out. Nevertheless I was told that that was not possible. I received a letter from the Public Bill Office that states:
"Clause headings can be changed during a bill's passage. But such changes are made by the Public Bill Office, at the request of the draftsman of the bill, rather than by amendment. Changes may be necessary, for example, to take account of the effect of amendments, or to reflect changes in the structure of the bill".
Will the noble Baroness be good enough to consider that matter and perhaps have a word with the draftsman because it is one thing to say that there is a duty for the commission to take certain action, but it is another thing to say that there is a fundamental duty to do so. That goes very much deeper than just the word "duty".
Clause 3 seeks to create a society in which various measures will be put in place. Those measures may constitute fine aspirations and I understand them as aspirations. However, they will become law and the commission will be told by law to create a society in which various measures will be put in place. I am concerned not merely about the intention of the Bill—that may be perfectly acceptable—but about the effect of it. Civil servants will read the law and will act according to what the law says and not according to what Ministers intend. I believe that they may come to very wrong conclusions.
At Second Reading I referred to Barnabas House, a hostel in Norfolk which was threatened with having a grant of £150,000 withdrawn because there were bibles in patients' rooms and grace was said before meals. An official said that people were being proselytised and that therefore the grant ought to be withdrawn. If a church cannot follow religious practices and encourage people to go down the path that that church considers is right, that is a great pity. However, the situation is much worse when officials threaten to withdraw grants from bodies that engage in religious practices. In fact, that did not happen at Barnabas House as, apparently, an accommodation has been reached. Religion will be kept low key. Bibles will be permitted in patients' rooms but they must not say grace before meals. That kind of measure is very dangerous. I regret to tell the noble Baroness that I consider that these words ought to be looked at again.
I have two amendments down to this clause—Amendments Nos. 61 and 62. I think that it would be for the convenience of the Committee—and brevity would be the reward—if I were just to deal with the points which have been raised by my noble friend on the Front Bench. Those two amendments would then fall into place very easily in what I have to say.
I would like to start by saying that I thought in the speech which my noble friend Lady Miller made from the Front Bench she made the point with eloquence, conviction and force. I very much hope that the noble Baroness on the government Front Bench will take this point really seriously. First, so far as concerns commissions, it is no exaggeration to say that the landscape is literally littered with them now. We have too many of them and there is no way in which Parliament or Ministers have effective control of them. I could give a number of instances in which powers have been given and powers have been abused. Therefore, I am fearful of going down that way again.
I just want to say this to the noble Baroness: commissions are not made in heaven, they are human and they are fallible and we have no business to assume that they will be otherwise. Secondly, we have a deplorable modern habit in this country now—and your Lordships' House has been one of the victims—of sprinkling cosmetic words all over Bills without necessarily adding to the meaning by one ounce. In fact, I strongly suspect that some of the words that are to be found in this particular clause, and in its paragraphs, are really sprinkled there by the authors of the Bill to glorify themselves and to say what fine people they are rather than to do anything to help those who are meant to be the beneficiaries of the Bill. I think this kind of cosmetic is quite intolerable and I very much hope that the Government will pay attention to the words of my noble friend, to which I see the noble Baroness has no answer possibly except that she will take this away and think deeply upon it. Otherwise I very much hope that on Report there will be further and much more warlike activity than there has been today.
I suggest that the language of Clause 3 on page 1 of the Bill is completely hyperbolic, or, to put it in plainer language, totally over the top. For that reason I strongly support Amendments Nos. 57 and 58 which have been spoken to. Of the two, I prefer Amendment No. 57 because I think it is very important that we should write in "laws passed by Parliament".
I thank the noble Baroness, Lady Miller of Hendon, for writing to me and for the compliment that she paid to my Private Member's Bill. I look forward to the speeches that she will make in due course when we have the single equality Bill in a couple of years' time. I am sure that the noble Baroness and her colleagues will support that Bill, as will noble Lords on these Benches. I agree with her that that is the Bill that we should have had at this stage.
I believe that there is a genuine misunderstanding regarding this clause. Leaving aside questions of hyperbole and phrasing, I wish to address the allegation that has been made that somehow the measure is unconstitutional or places the commission beyond the rule of law. I hope that I did not offend the noble Lord, Lord De Mauley, by what I said. If I did, I am very sorry about that. Maybe my language was unparliamentary for this House, although it would be perfectly proper in another place or elsewhere.
I took exception when it was said in that debate that this clause would mean that the courts found it almost impossible for any action of the commission to be deemed ultra vires, placing it above the law. I said that I thought that was not the case, and I asked whether there was any basis for it. The noble Baroness, Lady Miller, at my request, kindly produced a copy of an opinion that had been obtained from the Christian Institute, by Neil Addison of counsel, which I have looked at. It may well be that the origin of the difference between us lies in that opinion. He said that Clause 3 is unique in British legislation. It has both legal and philosophical difficulties. From a practical, legal point of view it will make the commission almost immune to a judicial review base on ultra vires. Almost any action could be justified as being part of the creation of a society.
I emphasise that nothing in Clause 3, including its preamble, in any way restricts the power of the courts to review any abuse of power by the commission, whether on grounds of irrationality, or legality, or unfairness. I have written as much to the noble Baroness, Lady Miller. The words that cause such difficulty with those who support the amendment are:
"The Commission shall exercise its functions under this Part with a view to the creation of a society".
The words, "with a view to", and "shall exercise its functions" create no new power of any unconstitutional kind. All that they say is that the aims that the commission should have in exercising its powers and performing its duties should be those that are then set out in the rest of the provision. Judicial review would lie if in exercising any powers or performing any duties the commission were to act in breach of administrative principles. I put down a Question about that for Written Answer, and the Minister helpfully confirmed that the body is fully subject to judicial review.
What Clause 3 first refers to as an aim to be taken into account by the commission is that people's ability to achieve their potential should not be limited by prejudice or discrimination. I would be astonished if that were considered these days to be controversial. Secondly, it says that there is respect for and protection of each individual's human rights. Again, that cannot be controversial. Thirdly, it says that there is respect for the dignity and worth of each individual. Again, I cannot understand how that could be controversial. Then there is equal opportunity to participate in society. Those are impeccable Conservative principles that Lord Boyle of Handsworth or Lord Hailsham of Saint Marylebone were famous for articulating during their great period in public office.
Then it says that there is mutual respect—
I am grateful to the noble Lord for giving way. He said that it is right to respect the dignity and worth of each individual. Does that mean that we are under some sort of moral obligation to respect the dignity and worth of murderers, rapists, muggers, vandals and almost anyone you care to name? That is what the phrase means literally.
It means that one respects, as an ancient Judeo-Christian principle, that every individual human being is entitled to respect because of their common humanity. It does not mean that someone who behaves in a criminal way is entitled to the same respect as someone who does not.
The desire to promote human dignity underlies many of the rights under post-World War Two international human rights instruments—it is not the invention of this Government. The Preamble to the UN Charter in 1945 explains that the peoples of the United Nations reaffirm faith in fundamental human rights and in the dignity and worth of the human person. The Preamble to the Universal Declaration of Human Rights of 1948 refers to the dignity and worth of the human person. There is similar language in the International Covenant on Civil and Political Rights and in the International Covenant on Economic, Social and Cultural Rights. They include declarations that,
"recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world", and,
"that these rights derive from the inherent dignity of the human person".
Similarly, the dignity of the human person is relied on frequently before the European Commission and European Court of Human Rights in their case law. I shall not mention the European Union Charter of Fundamental Rights, since there may be some here who would regard that as a fatal reference.
The Joint Committee on Human Rights in its 16th report on the Bill refers specifically to Clause 3, welcoming its terms with its echoes of the Universal Declaration of Human Rights. The committee said that it would serve in practice as a unifying factor in the commission's efforts to undertake its duties under Clauses 8 to 11. That report was unanimous. The committee included three powerful Conservative members; the noble Lords, Lord Bowness and Lord Campbell of Alloway, and Richard Shepherd MP of the other place. I was not on the committee, but I agree with what was said.
The clause does not in any way constitute an unconstitutional threat to the rule of law. It does not place the commission in any way beyond judicial review. It does echo all the values in the code of international human rights.
I have sympathy with one of the later amendments proposed by the noble Earl, Lord Ferrers, to which he has not yet spoken, Amendment No. 102. We shall not be debating that amendment this evening, but I shall mention it because it goes with this one. I find the way that Clause 13(1) on "Monitoring progress" is expressed to be, to say the least, a bit heavy-handed. What is then done is to give the commission the task of identifying changes in society in a rather unattractively worded way. When we come to that, I shall be interested to see what is said about it. As far as Clause 3 is concerned—
From the Government Benches, I must say that it will be incredibly difficult to deal with this group, which is important, if we start leaping around to other groups and other amendments. I would be enormously grateful if we could concentrate on this group, particularly bearing in mind the time.
I was not going to intervene in the debate, but I shall say briefly how much I agree with what has been said by my noble friend Lady Miller of Hendon. The noble Lord, Lord Lester, has not begun to answer the fundamental point made by my noble friends. There is no precedent of which I can think in any Act of Parliament for charging a quango with the duty of creating any particular form of society. The words in Clause 3 are entirely without any precedent whatever. The noble Lord, Lord Lester, in his very lengthy contribution has not begun to suggest that there is any such precedent. It is highly undesirable to charge a quango with that duty.
The clause does not say that the commission is charged with such a duty. If one reads the language, one finds that that is not what it says.
I thank the noble Lord for intervening, as it is very difficult for a lay person such as me to try to rebut anything said by the noble Lord, Lord Lester, on the subject. I am aware that outside this Chamber there is something that says that you shall not speak with asperity. I certainly will not do, but I found it difficult when the noble Lord, Lord Lester, said that my noble friend was legally illiterate in the point that he made and included me in that. That was most unfortunate.
Although I am not in a position to argue the law, the secretary of the noble Lord, Lord Lester, telephoned me the other day to ask whether I would send the other two opinions that I had had. If you say that you have had three opinions, most people normally accept that you have had three opinions. I was not in a position to send the other two because they were not written. However, as the matter has come up, I shall mention that one of them was from the noble Lord, Lord Kingsland, our shadow Lord Chancellor. The noble Lord, Lord Lester, may not think that the other is important but I do. It was from my husband, who has 53 years' legal experience.
Since the letter in which I said that I had had three opinions, I have had two further ones. As I pointed out in my speech, the noble and learned Lord, Lord Ackner, agreed with our views on "creation of a society". I more or less finished my presentation today by quoting the letter that has been sent to the noble and learned Lord the Lord Chancellor making the point about the width of the provision, which is unprecedented. The noble Lord, Lord Lester, started by saying that he thought that there had been a misunderstanding based on the opinion of Neil Addison from the Christian Institute. However, there has now been not only one legal opinion, but five.
The noble Baroness, Lady Miller, has been absolutely right—I am grateful to her—in explaining to me the depth and strength of her feeling, of which the Committee will be fully aware and which has been supported by its Members. I understand that the issue is important for her. I shall try to deal with some of the points raised. I hope that the noble Lord, Lord Peyton of Yeovil, will not mind, but he has leapt two groups and brought his amendments forward a little. I shall try to answer a few of his points. I do not know whether he will repeat what he said after the dinner break; I will assume that he will not for the moment.
I thought that I had made it clear that, as my noble friend had said everything that I wished to say, there was no real point in my ploughing into the detailed amendments to which I was going to speak. I did so to be helpful to the noble Baroness. I hope that she will now be helpful to us.
I shall try; I am grateful to the noble Lord for clarifying the position.
I shall make a point about the role of the law. I agree with what the noble Baroness, Lady Miller, seeks to do in terms of recognising the importance of the law. It is probably the most vital instrument in promoting change. It is right for the commission to support the laws, both where it has an explicit function set out in discrimination legislation and, in a more general sense, in recognising the contribution of other legislation to tackling inequality and disadvantage.
Members of the Committee will agree that the law is a partial instrument, in a sense—that where we want to achieve progress, there needs to be the cultural shift and change to move beyond compliance with the law to embracing equality and human rights positively in everyday attitudes and practice. The Committee will know that those involved in the world of disability, for example, will talk about the fact that legislation is important, but real involvement, acceptance and participation comes from the cultural shift of attitudes that enables people to see beyond the disability to the person, if I might put it that way.
My experience as a Minister for children with special needs and disabilities was very much that inclusion is about what happens to you. It is not about the school to which you go, but the experience that you have. Whether you are black, female, disabled or come from any category—the elderly, the young, whatever—your life experiences of inclusion depend on how people treat you and the way in which they interact with you. The law is critical in that, but it is not the only instrument; we must look beyond that. In the Bill, we are trying to capture some of that and recognise not only the role of the law, but that true inclusion goes beyond that to making sure that we can take action.
One difficulty with the amendment is that it defines things in terms of legislation passed by Parliament. The devolved administrations are taking their own paths to deal with equality, human rights and strong communities. We want the commission to be able to operate in those countries. It is a technical point, but one that I shall make in any event so that the Committee will see where I am trying to position the matter in the way in which I have approached it.
The law and the breadth of people's experience are critically important. The clause was drafted very much with the stakeholders involved. They felt very strongly; Members of the Committee will not be surprised to hear that I asked where the clause came from. They sought to capture the point that I have made through the wording of the clause.
The noble Baroness, Lady Miller, rightly quoted the letter from the noble Lord, Lord Holme. I mentioned before that the correspondence was on the website. I replied on behalf of my noble and learned friend to the committee, and said:
"While Clause 3 . . . depicts the society to which we aspire—one characterized by opportunity, respect for all and cohesiveness"— all Members of the Committee would share that aspiration—
"it does not itself confer any powers. Its purpose is to set the context in which the CEHR should work".
No powers are created in the clause. That is very important in understanding the way in which we have tried to approach the Bill.
The noble Lord, Lord Peyton of Yeovil, specifically had issues with worth and dignity, so I looked up the definitions of them. We are trying to capture the concept of not only treating people in an equal way—you can be equally horrible or equally torture—but recognising the worth of people. "Worth" is defined in the Oxford English Dictionary as the character or standing of a person in respect of moral and intellectual qualities. There are a number of different ways in which "dignity" can be defined—that one has stateliness, seriousness, formality of manner, goodness and ability of character, calmness, self-control and so on.
There are lots of ways in which we approach those words, but they are well recognised in terms of how the UN charter has been developed and how we have developed our work with the Human Rights Act. Beyond the equal treatment that you seek, the character must be recognised. The noble Lord, Lord Monson, asked about murderers and evil and wicked people. We are trying to describe mutual respect for people—the mutual way in which we approach people. Those who treat others badly because of their extreme views or because they are evil are not included in that sense. We say that every person is worthy—every person should be treated with worth and dignity, but those who behave badly do not command the mutual respect of the society and need to be dealt with.
We have tried to capture the essence of humanity.
I wish the noble Baroness would just agree to take the matter away, reflect on what has been said and come back on Report. That is what seems essential. If she is to go on defending the provisions, she will do nothing to allay the anxieties.
The noble Lord, Lord Peyton of Yeovil, must surely accept that for me to determine what I should do, it is also important not only for noble Lords who are here but also for noble Lords who might be interested to understand whence this clause came and what we are seeking to do. It may be extremely disturbing for the noble Lord, but other noble Lords have been interested in what I have been trying to put across. I shall finish by being as brief as I can.
The eloquent argument put by my noble friend Lady Miller and the noble Lord, Lord Waddington, as I understand it, is that if this measure were passed, it would be an unprecedented granting of powers to a quango by Parliament. I certainly understand where she is coming from and the argument that she has advanced, but all we wish to know at this stage, before we reflect on it at later stages, is whether she accepts that this would be an unprecedented granting of powers to a quango by Parliament.
I thought that I had already read, in my response to the noble Lord, Lord Holme, regarding the constitutional power, that the clause does not confer any powers. Its purpose is to set the context.
I wish to address the comments of the noble Earl, Lord Ferrers, because the matter is important. First, the noble Earl was unable to amend the heading, which is an issue about which he feels strongly because it is set out in a particular context. We will, of course, look at that, as the noble Earl has asked. In fact, it is included in the Companion to the Standing Orders on page 106, so the noble Earl was unable to amend it. But I am perfectly comfortable to re-examine those words.
Perhaps I may conclude my remarks, having set out the context—
Would not much of the difficulty that has been raised be solved if instead of the words,
"with a view to the creation", the Bill read something like,
"The Commission shall exercise its functions, recognising the importance of"?
What followed would then seem acceptable to most people. We should take away "creation" and insert "recognising the importance of".
When I reach the end of my speech, I think that the noble and learned Lord will, perhaps, be more reassured. I was about to say that I recognised the strength of feeling behind the amendment tabled by the noble Earl, Lord Ferrers, which changes "creation of" to "encouraging". That is important and is not very different from what the noble Earl said.
I was going to propose that I took away the noble Earl's amendment, to consider with parliamentary counsel what we might do. In the broader context, and I make no apology for setting out where we are and what the clause does and does not do, I shall look again, not only with the noble Baroness, Lady Miller, but with those who have been involved in drafting the clause, and see how we might strengthen it in the right way.
I should be clear—the clause does not confer powers. That is not its purpose—it sets the context. I must ensure that that is more explicit in the Bill. That might be achieved by simply changing the heading from "Fundamental duty", as the noble Earl indicated. I do not know. Like the noble Baroness, Lady Miller, as we have discussed, we are not lawyers—we are lay people. Thank goodness for that, I sometimes say to myself. But because of that, it is important that we work closely with those who have drafted the Bill.
This is a context clause and does not establish an unprecedented power. That is absolutely not what we would do. We fully agree with that. We are looking to see how we can make the Bill better, so that noble Lords will feel more comfortable, while not losing its essence—that it is "law plus" which will make a difference. On that basis, I hope that noble Lords will feel comfortable about withdrawing their amendments.
I thank the Minister for her comments and all noble Lords who have supported me, including the noble and learned Lord, Lord Slynn, for his suggestion. The bottom line is that I understand exactly what the Minister is saying—that it is not the Government's intention to do this, that or the other. What matters is what the clause actually says and what an ordinary person looking at it thinks it means. I stand by that and I still think that what I said is what it probably means. But in view of the noble Baroness' comments, and bearing in mind that she knows how strongly I feel about the matter, at this stage I beg leave to withdraw the amendment.