Equality Bill [HL]

– in the House of Lords at 3:06 pm on 19th October 2005.

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Schedule 1 [The Commission: Constitution, &c]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 3:07 pm, 19th October 2005

moved Amendment No. 1:

Page 55, leave out lines 12 to 14 and insert—

"(1) In appointing Commissioners the Secretary of State shall—

(a) appoint an individual only if the Secretary of State thinks that the individual—

(i) has experience or knowledge relating to a relevant matter, or

(ii) is suitable for appointment for some other special reason, and

(b) have regard to the desirability of the Commissioners together having experience and knowledge relating to the relevant matters.

(2) For the purposes of sub-paragraph (1) the relevant matters are those matters in respect of which the Commission has functions including, in particular—"

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the group of amendments in my name will considerably strengthen the independence of the commission from government. Noble Lords will have noticed that there is a mistake in Amendment No. 1, which says,

"leave out lines 12 to 14".

It should read,

"leave out lines 12 to 15".

I hope that noble Lords will be willing to proceed on the basis that that is the correct amendment. I am very grateful to the noble Baroness, Lady Miller of Hendon, and the noble Lord, Lord Lester, for nodding assent to that. With the leave of the House, we shall proceed on that basis.

With the agreement of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Turner, I should also like to speak to Amendments Nos. 2, 3 and 6, which are in their respective names in this group, as well as all the supplementary amendments to Amendment No. 1. I know that this was a matter of considerable concern to noble Lords from all sides of the House when it was debated in Committee. I am particularly grateful to the noble Lord, Lord Lester, for his careful and considered contributions to that debate and to the persuasive arguments put forward by the noble Baroness, Lady Miller.

During Committee, the noble Lords, Lord Lester and Lord Goodhart, proposed an alternative model to the classic non-departmental public body framework on which the constitution of this commission is based. There was a long, lively and high-quality debate about the merits and flaws in such a model, and my noble friend Lady Ashton invited representations on other alternatives as a way of addressing those very real and important concerns. Officials and colleagues worked hard over the summer to consider other appropriate alternatives. On balance, however, we have found the non-departmental public body framework to be the most appropriate model; it is tried, tested and well understood. However, that does not mean that we have failed to be persuaded. The amendments in this group, in my name, seek to address a number of concerns, which I shall briefly explain.

We have sought to ensure that the Bill makes crystal clear that the Secretary of State can make appointments only based on merit unless he has some other special reason for doing so. It would be implicit therefore that, were the Secretary of State to invoke some special reason, he would be required to explain that reason clearly.

I believe this amendment will ensure that those appointed to the commission will—except in the most exceptional circumstances—have secured those appointments based only on their ability to meet the criteria set out in the Bill; namely, knowledge or experience in the named areas of discrimination, in human rights or in other matters relevant to the functions of the commission. The functions of the commission include knowledge or experience of business, trade unions and the public sector.

Amendments Nos. 2, 3 and 6 in the names of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Tuner of Camden, seek further to ensure that there is gender balance, that at least half of the commissioners have personal or direct experience of discrimination, and that a quarter of commissioners are of a black or minority ethnic background. While I fully support the sentiments behind these amendments, we must take care to strike the right balance between providing the commission with sufficient flexibility and independence to determine its own affairs and taking measures that within the core principles of the commission are statutory and binding. We have already provided strong guarantees that knowledge and experience of discrimination and human rights should be criteria for appointment and we have further strengthened the appointments process to ensure that appointments are made, except in special circumstances, only on the basis of that knowledge or experience. I very much hope that, when the commission is appointed, its make-up will broadly reflect the balance that these amendments seek to secure but I do not feel that it is an issue on which we should legislate. I very much hope that the noble Lord will withdraw those amendments.

I turn to the issue of funding. A number of noble Lords spoke in Committee with great passion and concern about the need to ensure the commission's independence by providing some security about its funding. Amendment No. 16, which sets out the obligations on the Secretary of State in relation to the commission's funding, replaces the term "appropriate" with "reasonably sufficient" which I believe addresses the spirit and intent of those concerns legitimately raised by noble Lords in Committee, strengthening therefore our commitment to provide fully adequate funds for the commission to carry out its work.

As far as possible Ministers will seek to provide, through the non-departmental public body framework, the funding the Commission for Equality and Human Rights will need to implement its strategic plan. It will also inevitably be determined to some extent by the overall state of government finances and spending priorities. This is both pragmatic and fair, recognising government's responsibility to ensure that public spending offers value for money, efficiency and efficacy.

We have already indicated that our working assumption is an annual budget of around £70 million when the new commission is fully operational, which, as noble Lords know, represents a 43 per cent increase over the combined budgets of the existing commissions.

In moving these amendments I believe that we have honoured the spirit and the intent behind many of the concerns expressed by noble Lords in a way that does not risk or undermine the non-departmental public body framework.

We are also proposing to introduce a new duty on the Secretary of State to have regard to the desirability of the commission operating with as few constraints as reasonably possible in determining its activities, timetable and priorities. This duty will further underwrite the commission's independence in determining and implementing its plans and activities on which it will, of course, be required to consult widely. We believe that this greatly strengthens our commitment to the commission's independence and I invite noble Lords to support it.

Many noble Lords expressed concerns at the number of provisions—too many in their view—that enabled the Secretary of State to direct the commission's work. Many noble Lords felt that was an inappropriate constraint on the commission's independence, and we agree. These amendments therefore remove the Secretary of State's direction-making powers in respect of advising on the effect of existing or forthcoming legislation; undertaking inquiries and investigations; and making assessments of performance under the public sector equality duties.

There may well be occasions where it will be appropriate for the Secretary of State to invite the commission to make its expertise available through advising on the law, or conducting inquiries, investigations or public sector assessments into particular issues of public interest. I would expect the commission to look positively at such requests, but such agreement is better reached through constructive working relationships between the Secretary of State and the commission rather than through the use of compulsory powers.

The amendment related to codes of practice limits the Secretary of State's direction-making power in respect of preparing codes of practice. The direction-making powers here can be exercised only on matters likely to be the subject of forthcoming legislation and that the Secretary of State expects to include in the commission's remit. For example, if the Government were to bring forward a single equality Act, as we intent to do in this Parliament, the Secretary of State would be able to direct the commission to start the work to prepare a code of practice while the legislation was making its way through Parliament. Without such a direction, the commission would have no powers to do that, as the new legislation would not yet be listed in the commission's remit. In this way, the code of practice can be available at the time when the legislation is enacted and not several months afterwards, which is a benefit for employers and service-providers who may be required to comply with the legislation.

Amendment No. 34 responds to concerns raised by the noble Lord, Lord De Mauley, in Committee. He made a strong case for greater transparency before Parliament with respect to the commissions' strategic plan. I hope that he will share my confidence that Amendment No. 34 addresses the issue that concerns him. The commission, unlike its predecessor bodies, will be a commission for all working across many different interests and communities. It is required to consult widely and in a meaningful way on its strategic plan. In other words, it must listen to, consult on, and hear the concerns and aspirations of its many constituencies so that it is as open and transparent as possible about how it determines its priorities. It is therefore right that such a document, drawing on the experiences, hope and concerns of those including, but going beyond the obvious interests, should be made available to the Secretary of State and to Parliament. After all, the Secretary of State is ultimately accountable for the new commission, and we in Parliament should be afforded an opportunity to comment and question the Government on the commission's priorities.

Taken together, this set of Government amendments is a powerful package of measures to strengthen the commissions' independence. We listened carefully to the concerns expressed in the House and elsewhere, and we have responded. I commend the amendments to noble Lords. I beg to move.

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords 3:15 pm, 19th October 2005

My Lords, I point out that because of pre-emption if this amendment is agreed to I shall not be able to call Amendment No. 2.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, this Bill is a core commitment of Liberal Democrats, and therefore we share entirely the Government's objective of securing the speedy passage of the Bill provided it is fit for purpose. As I said at Second Reading, one of the problems that the Government have had in managing the Bill is that responsibility is spread over so many different departments. That has required an unusual degree of co-ordination with Ministers looking over each others' shoulders and their officials doing the same. I hope that it does not harm the future career of the noble Baroness, Lady Ashton, if I say that in my dealings with her this summer and autumn she has shown quite extraordinary open-mindedness and skill in listening, and she and her team in responding, to all the points put by all of us in the earlier debates. I really think that without her as midwife, if that is the right profession, we would not be where we now are.

I also while expressing my gratitude would like to take the unusual course of naming a particular public officer, the parliamentary counsel dealing with this, Daniel Greenberg, who has been imaginative in dealing with the real concerns that we have had rather than theoretical concerns. It has therefore been an enormous pleasure to see what we attempted to do ineptly in putting down our amendments about independence translated into the real safeguards that have been described by the noble and learned Lord the Lord Chancellor in ways that I do not need to repeat. We on these Benches are entirely happy with what is a powerful package of measures to strengthen the commission's independence compatibly with its status as a non-governmental organisation. We realise that "independence" was inconsistent with that status, but what is imaginative about the measures is that they address the real problems about transparency, merit appointment, no unnecessary ministerial interference, and a ministerial duty not to be bossy except in extreme cases. All that is embodied in the package.

Several noble Lords present who have been on equality commissions in the past as distinguished chairs or deputy chairs—I am thinking particularly of the noble Baronesses, Lady Lockwood and Lady Howe of Idlicote—will realise that the measures are a great improvement on the situation of the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission. Therefore, we fully support the package. Much as we understand why the noble Lord, Lord Ouseley, and other colleagues seek to add other amendments, for the reasons given by the noble and learned Lord the Lord Chancellor we believe that this package is the most satisfactory outcome. We are rather against silo thinking—that is how the noble Baroness, Lady Ashton, put it at one stage—and like a holistic approach not cluttered by too many mechanistic solutions. Therefore, we fully support the amendments.

Photo of Lord de Mauley Lord de Mauley Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, we are grateful to the noble and learned Lord the Lord Chancellor. We are content with the package of measures, particularly the increase to transparency. I join the noble Lord, Lord Lester, in his compliments to the noble Baroness, Lady Ashton, for her work to agree a consensus.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I thank my noble and learned friend for his explanation of the government amendments. It is of course important to ensure that the commission is broadly representative of the people about whom it is concerned. In Committee, I tabled an amendment designed to ensure that trade unions and business interests representative of managements should be represented. That is because the work of the commission will undoubtedly be concerned with employment. The amendment did not attract government support and was withdrawn.

I put my name to Amendment No. 2 because it was concerned to ensure that the commissioners had personal or direct experience of discrimination or prejudice. I hoped that that would therefore cover the important area of employment. I listened carefully to what my noble and learned friend said in moving the government amendment, and I hope that it will have that effect and that the issue of employment will be adequately protected when the commission starts its work.

I applaud what the Government have done in relation to the separate arrangements for disabled people, but it is important to ensure that all sections of the community that will be concerned with the work of the commission feel that they will be adequately represented by the way in which the commission is constituted. They have to have confidence in the commission, to which they will look for support. Therefore, I hope that the amendment will ultimately have that effect.

Photo of The Duke of Montrose The Duke of Montrose Spokespersons In the Lords, Environment, Food & Rural Affairs, Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Minister for Women & Equality- Not In the Shadow Cabinet)

My Lords, Amendment No. 3, tabled by the noble Baroness, Lady Turner, deals with the appointment of commissioners, among whom is a commissioner for Scotland. I am afraid that those noble Lords from Scotland are not all present today, but we are certainly grateful for the attention paid by the Government to some points that we have raised before and how they have dealt with them.

Paragraph 2(2)(b) deals with the Scottish commissioner. Will the Minister confirm my understanding that equality of race, sex and disability are matters for the whole UK, and that it is probably only in human rights that there are devolved implications? At the same time, I understand that the Scottish Parliament is currently considering a Scottish Commissioner for Human Rights Bill. Is it the Government's intention that that Bill will enable the appointee under the Equality Bill to carry out functions in Scotland, whether the same man takes up the functions or a separate commissioner is to be appointed in Scotland to act on devolved equality issues?

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I have listened carefully to the noble and learned Lord the Lord Chancellor speaking to his amendments and I was considerably moved by the attempts to give greater independence to the commission. That was a major concern particularly in the light of the clear erosion in confidence in existing commissions as a result of perceptions of political manipulation and their failure to challenge those who occupy powerful positions—such as Secretaries of State who may admit to direct, deliberate and unlawful sexual discrimination—and when nothing is done and no challenge is made. How does that give confidence to victims of discrimination that the commissions are operating independently, effectively, purposefully and on behalf of the victims?

So I welcome a package of measures that will give greater strength to the way in which this commission will be seen as independent. However, I do not believe that the proposals on the appointment of commissioners move us far enough towards a more representative commission. The noble and learned Lord the Lord Chancellor has shown movement in bringing forward Amendment No. 1. However, I should have thought that his description about making appointments only on the basis of merit already described how we make appointments—only on the basis of merit. I hope that we are not saying that in future, and in this case, we will seek to make appointments on merit. I thought that that was an automatic and essential criterion.

I should also have thought that knowledge and experience of discrimination and human rights were essential requirements for anyone to have even a remote possibility of being considered for appointment as a commissioner. Amendment No. 1 is too vague to achieve the range of representativeness necessary for a body such as this. The body we are seeking to create is important because it will handle all our affairs on equality and human rights.

Five major points are important in achieving an effective commission. It must have good law to work with. We are still awaiting it and are promised it, and we hope that it comes sooner rather than later. It must be independent, competent and confident as well as accountable. It must have the confidence of the public in its work. It must be effective in its law enforcement—which is not happening at present, and I am not certain that the entirety of the proposals will enable it. Finally, there needs to be demonstrable evidence that the commission is making a difference in achieving the goals of equality, fair treatment and human rights.

If we are to achieve a more representative commission, we must see proposals for balanced appointments alongside the criteria of relevance to the purpose of the commission, as well as appointment on merit. The Bill rightly provides specifically for the appointment of a commissioner who is disabled. In fact, the noble Lord, Lord Carter, has already appropriately articulated that there probably should be more than one such commissioner. I do not think that there is a problem with that at all. The noble Baroness, Lady Turner, has argued appropriately for the representation of trade union and employer business interests. That also can be accommodated within the proposals for representativeness. But—I am afraid that I do not accept what has been articulated so far—the Bill remains silent on the issue of representation from all other strands of discrimination and interest groups.

The amendments put forward to achieve a commission composed half of women and a quarter from a black and ethnic minority background as a statutory requirement would, we believe, remedy that serious anomaly. If it is argued, as it is, that to impose such a strict requirement would impinge on the independence and flexibility of the commission to make its own decisions, why have we already imposed a requirement for the appointment of a commissioner with a disability?

The commission needs to be effective and we have to get it right first time. There is no point in having a toothless talking shop of experts without empathy or identity, and part of the notion of representativeness is to achieve that. We want to see independent, competent and non-politically aligned commissioners who are prepared to challenge and root out all aspects of unlawful discrimination and thus promote confidence in relations across all groups of people through engagement and empathy. We do not want to see people sitting in their CEHR towers among other out-of-touch metropolitan elites. We want competent commissioners who are in touch with the realities of the experience of discrimination and exclusion, and I am afraid that the notion of merit will not necessarily enable us to achieve that because it has not enabled us to achieve it so far.

The present proposals are inadequate and unacceptable. They will fail because they will cause resentment relating to inequality and treatment which is perceived as favourable as well as unfavourable, and they will create conflicts among commissioners. We need to resolve those issues before they emerge. In my view and, I know, in the view of many stakeholders in the business of equality, fairness and diversity, the best way forward is to create a visibly representative commission that is competent, confident, independent, accessible and reflective of our diversity. If we cannot do that now, when will we ever achieve such a goal? The commission should set the standard for equality, fairness, human rights and visibly representative diversity.

Photo of Baroness Lockwood Baroness Lockwood Labour 3:30 pm, 19th October 2005

My Lords, I am sorry that I have to disagree with the noble Lord, Lord Ouseley, whose period as chairman of the Commission for Racial Equality overlapped for a time with my period as chairman of the Equal Opportunities Commission. However, given the nature of the new commission and the number of strands that it will have to cover, I think that the recommendations in the amendments put forward by my noble and learned friend the Lord Chancellor give the commission the best possible chance of attaining a balanced membership, as opposed to the proposals in the noble Lord's amendments, which could, in effect, take up three-quarters of the total membership of the commission. I know that it is possible for one person to be both a member of an ethnic community and a woman; nevertheless, under the terms of the noble Lord's amendment, it is possible that three-quarters of the commission could be taken up by places allocated not to individuals but to the strands covered by the commission.

From my experience as chairman of the Equal Opportunities Commission working with two governments, one of each colour, I feel that the commission, and the chairman in particular, should be adequately consulted about the needs of the commission. I feel absolutely confident that that would happen under the proposed new structure. So I thank and support my noble and learned friend the Lord Chancellor for the whole range of amendments that he has brought before us this afternoon. They have my complete support.

Photo of Lord Adebowale Lord Adebowale Crossbench

My Lords, I support the amendments tabled by my noble friend Lord Ouseley and I take account of the useful comments that the noble Baroness, Lady Lockwood, has just made. We are faced with a real opportunity to increase the confidence of the black and minority ethnic communities in their ability to access justice through this Equality Bill.

It is worth reminding the House that these amendments tabled by my noble friend Lord Ouseley, supported by myself, are not simply the ideas of my noble friend and me. They come from the 1990 Trust—a well respected policy advice and research organisation which looks into the issues affecting the black and minority ethnic community—the Commission for Racial Equality and the Greater London Authority. None of those bodies has arrived at these amendments overnight. They have consulted widely among the black and minority ethnic communities and have arrived at these amendments with due support for the Government in their attempts to create a credible Equality Bill and a credible mechanism for addressing race within that Bill.

Turning to the comments made by the noble Baroness, Lady Lockwood, it is possible that three-quarters of the commission could be assigned, but it is also possible that more than three-quarters of the commission could have no representation and therefore no respect from a large majority of the population who, in this day and age, we must engage in the debate on equalities. This House will debate issues concerning terrorism, mental health and many other issues that disproportionately affect members of the black and minority ethnic communities. We owe it to those communities to respect their views on how the Equality Bill will be received by them. I urge the House to think again about how appointments are made to the Equality Commission.

I reflect on the amendments that the noble and learned Lord the Lord Chancellor tabled. They try to be helpful in this regard, and they are noted as such, but one can drive a coach and horses through what they say. I agree with my noble friend Lord Ouseley that appointments will of course be made on merit, but will they also be made with due regard to the experience of those communities and will they reflect the genuine concerns of the BME community as regards this Bill?

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I have listened carefully to the arguments of my noble friends Lord Ouseley and Lord Adebowale, but the more I look at what is contained in the amendment tabled by the noble and learned Lord, Lord Falconer, the more I believe it really meets what is required. The last thing we want is to be over-prescriptive, but it is quite clear that we need people with knowledge and experience—personal or practical experience—in this area. That is what we are looking for. I believe that this really is a good amendment and I am happy to support it.

Photo of Baroness Howells of St Davids Baroness Howells of St Davids Labour

My Lords, I am sure it will be of no surprise to noble Lords to hear that I support the noble Lords, Lord Ouseley and Lord Adebowale. I shall not add to what they have said, but I want to mention to the House a statement made by the Prime Minister. He was surprised that young people born in this country took part in the bombing of this country. I dare to advance to the House the proposition that, when bringing forward something as important as the Equality Bill, unless we show practically that those people are part of the community, we may be in danger of facing more and more incitement to racial hatred.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I am grateful for all the contributions of noble Lords and for the support given to the Government's proposals to deal with the important issues raised in this group of amendments. I agree with the noble Lords, Lord Lester and Lord De Mauley, on the critical role that my noble friend Lady Ashton has played in relation to this. She has been second to none in the work she has done in achieving agreement on these issues. The one point on which we all agree is that we want to see the Bill go forward in the best possible form. I also agree with the comments of the noble Lord, Lord Lester, on the work of Daniel Greenberg, which has been exemplary.

I turn to the points raised by the noble Duke, the Duke of Montrose, in relation to Scotland. Equality is a reserved matter and human rights is a Scottish matter. He raised specifically the forthcoming Scottish Human Rights Commission. Our commission created by the Bill will co-operate with the Scottish Human Rights Commission, announced by the Scottish Ministers. Our commission will deal with reserved matters and the Scottish commission will deal with devolved matters. There will be a memorandum of understanding to tie up the loose ends, which are an inevitable outcome of the Scotland Act 1998 to ease potential rubbing points between the commissions and to provide the flexibility necessary in the relationship for efficient and effective human rights coverage.

I turn to the important and impressive debate between, on the one hand, the noble Lords, Lord Ouseley and Lord Adebowale, and my noble friend Lady Howells of St Davids, and, on the other hand, the noble Baroness, Lady Howe, and my noble friend Lady Lockwood. I completely agree with the definition given by the noble Lord, Lord Ouseley, of what we want the commission to do. It should be competent, confident, independent, accountable and visibly representative. I also completely agree that people who see it must believe that the commission is on their side. However, I disagree with him and agree with the other side that those aims are not achieved by being over-prescriptive on who must be appointed as commissioners.

The Ouseley/Adebowale amendments say that you must have a particular type of person with a particular type of experience. Our amendments propose that only an individual who,

"has experience or knowledge relating to a relevant matter, or . . . is suitable for appointment for some other special reason", can be appointed. That is sensible. It gives the right degree of focus, but it does not give the degree of inflexibility which I believe, far from promoting the aims we all want, could well lead to a restriction in the delivery of those aims.

I therefore ask noble Lords to consider whether in the light of the commitment I have given today the terms of our amendment deliver what we all want to achieve. I commend it to the House.

On Question, amendment agreed to.

[Amendments Nos. 2 to 14 not moved.]

Photo of Lord Ouseley Lord Ouseley Crossbench

moved Amendment No. 15:

Page 60, line 34, at end insert—

:TITLE3:"Greater London Committee

31A (1) The Commission shall establish a decision-making committee to be known as the Greater London Committee.

(2) The Commission shall ensure that the Greater London Committee is established before any of sections 8 to 13 come into force (to any extent).

31B The Commission shall appoint as the Chairman of the Greater London Committee a Commissioner appointed for the purpose of satisfying paragraph 2(2)(ca).

31C The Commission shall appoint each member of the Greater London Committee for a period of not less than two years or more than five years, subject to the possibilities of—

(a) reappointment, and

(b) dismissal in accordance with the terms of appointment.

31D The Commission shall, in appointing members of the Greater London Committee, ensure that the Committee includes—

(a) persons no fewer than half of whom have personal or direct experience of one or more of the causes of discrimination or prejudice referred to in sections 10 and 11(2),

(b) not less than one person who is (or has been) a disabled person,

(c) persons no fewer than one half of whom are women, and

(d) persons no fewer than one half of whom are from a black or other ethnic minority background.

31E The Greater London Committee shall advise the Commission about the exercise of its functions in so far as they affect Greater London.

31F Before exercising a function in a manner which in the opinion of the Commission is likely to affect persons in Greater London, the Commission shall consult the Greater London Committee.

31G (1) The power under section 14—

(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as its exercise, in the opinion of the Commission, affects Greater London, and

(b) to that extent shall not be exercisable by the Commission.

(2) Sub-paragraph (1) does not apply to the power under section 14 in so far as it is treated as delegated to the Disability Committee in accordance with paragraph 52.

(3) Sub-paragraph (1) shall not prevent the Commission from making arrangements under section 14(1)(d) or (e) for the provision of advice or guidance to persons anywhere in Great Britain.

31H (1) The power under section 12(2)(c)—

(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as it concerns the giving of advice to devolved government about enactments which, in the opinion of the Commission, affect only Greater London, and

(b) to that extent shall not be exercisable by the Commission.

(2) The power under section 12(2)(d)—

(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as it concerns the giving of advice to devolved government about proposed changes in the law which, in the opinion of the Commission, would affect only Greater London, and

(b) to that extent shall not be exercisable by the Commission.

(3) Sub-paragraphs (1) and (2) shall not apply to the power under section 12(2)(c) and (d) in so far as they are treated as delegated to the Disability Committee in accordance with paragraph 52.

31I In allocating its resources the Commission shall ensure that the Greater London Committee receives a share sufficient to enable it to exercise its functions."

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, Amendment No. 15 establishes a decision-making committee to be known as the Greater London Committee. It follows the same principles as the previous debate on representativeness in as much as it seeks to prescribe what the commission should be doing.

The Equality Bill is relatively silent on how the Commission on Equality and Human Rights will have a regional presence and relate to existing regional structures. Once again, I point to the anomaly that the Bill specifies responsibilities for Scotland and Wales but does not recognise other existing regional arrangements. It does not state how the commission will align itself with such arrangements. In the context of London, particularly Greater London, we are talking about the most ethnically and culturally diverse capital city in the world. Its uniqueness is characterised by an elected mayor with statutory responsibilities and duties on equality that are exceptional and warrant a parallel recognition of London's importance alongside those of Scotland and Wales, notwithstanding the fact that they are nation states.

We have to address, however, the demography of Greater London, and the fact that it is seen as a place the world comes to. London's diversity is recognised globally. What undoubtedly captured the world and made 2012 a reality for London was its cultural, global and ethnic diversity. It was the nap hand that won the Olympics for us. Our culture of diversity is second to none. Even in the United States and Canada, two countries that see themselves as advanced in the area of promoting ethnic, racial and gender equality, they look at the work we do in this capital city and sometimes marvel at it. Notwithstanding the fact that we still have much to do, we have achieved a great deal in the way we have organised coherently, with that statutory responsibility placed on the Mayor of London, to bring about a real engagement with the communities, and we have sought to parallel the concerns to achieve outcomes related to the needs of the different groups of people represented in this city.

Of course there is great complexity, but we look to London for its leadership role, not only in managing equality in the Greater London area, but also how the city becomes an exemplar for other countries. There are times when people see London as overexposed and, because of its resources, diversity and profile, wanting to tell others how to do things. This is clearly not the case, because what happens in London cannot happen elsewhere. We are as unique as every other part of this great nation is unique. Rural racism, and how we address that, is quite different from racism in the urban environments, such as estates. That is an important part of our diversity.

There is a lot to learn from the way in which we bring about greater cohesion, notwithstanding the wide range of problems. This amendment would enable us to see the commission establish, as a requirement, a Greater London committee with similar decision-making responsibilities as Scotland and Wales, aligned to the statutory arrangements that already exist for Greater London, and which the CEHR will have in place along with those for Scotland and Wales. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, maybe it is because I am a Londoner, but I think the headquarters of the new commission should certainly be based in London. If there were an amendment raising that issue I would be sympathetic. I have to admit, however, that I start with a certain bias against this amendment, because the Mayor of London, Mr Livingstone, has been opposed from the beginning to a single commission. I think he was entirely mistaken in that.

Secondly, there is a problem with what I would call "me too-ism". In my Equality Bill, I made a major concession to the disabled by creating a disabled committee of the commission. I did that for obvious reasons, not the least of which was that disability discrimination had been made unlawful only relatively recently and, yet, we were to lose the Disability Rights Commission. However, once you establish a disability committee, you get demands for a race committee or, as now, a demand for a Greater London committee or sub-committee or sub-sub-committee.

I ask those in favour of the amendment to reflect for a moment on the new commission. It will have to deal with all the main strands of discrimination in promoting equality. It will also have to deal with the entire human rights area. It must, as we have heard, be able to reflect the knowledge and experience of people in all those areas, and it must act as a college, a collegiate and holistic body, without turning into different factions or sectional interests. It is not for Parliament to dictate to the new commissioners, who will lie on a bed of nails when they start on the new commission. They have much difficult work to do. It is not for us to dictate a committee structure of any kind to them. It seems to me that the right thing to do is to choose the right people, the right senior staff, and leave it to them to decide how to exercise their responsibilities.

I say to my old friend, the noble Lord, Lord Ouseley, that I strongly oppose the philosophy behind this amendment, as I opposed the previous amendments. It would lead to Balkanisation and would lead to Greater London being treated as a country, as though it were Scotland, Wales or Northern Ireland. Although, as I said, I am a proud born, bred and raised Londoner, I do not think that we can elevate ourselves in that way. No doubt, London is one of the most important cities in the country. It is the capital, and it should be the seat of the commission, but it certainly ought not to have a special committee for it, any more than anyone else should.

Photo of Lord Adebowale Lord Adebowale Crossbench

My Lords, I support the amendment moved by my noble friend Lord Ouseley. I note with interest the comments made by the noble Lord, Lord Lester of Herne Hill, but the Bill ignores one simple fact: London is the window to this country's multi-racial society. There are 300 languages spoken in London; there is no other place in Britain where that is the case. There are London boroughs where the majority of the population—Newham and Brent are examples, and Tower Hamlets is fast approaching—where more than 50 per cent of the population are from a black or minority ethnic group. I find it astonishing that we could have a debate about equality without focusing on the needs of London.

I do not see how the "Balkanisation" remark could be borne out in fact. London leads on many debates on race and equality, and we are seeking to acknowledge that and build that place for London into the Bill. I thank the noble Baroness, Lady Ashton of Upholland, for her meetings with me prior to Report and for her attempts to square the circle, as it were. However, as she can see and as the noble and learned Lord the Lord Chancellor can see, many in the community are still dissatisfied with the Government's attempts to square the circle. It is an opportunity to underline the Government's commitment to equality and to acknowledge the special place that London has in this country's multi-racial life. I invite the Government to make that acknowledgement by, at least, accepting the need for a London committee.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I do not wish to delay the House and repeat what has been said, but I must say that I agree with the noble Lord, Lord Lester of Herne Hill. Like many other people, I was born and bred in London, and I always want to push London right to the forefront. In an earlier sort of life, I was chairman of the Conservative Party for London, and, to me, London was the thing. However, at the end of the day, we are creating a commission, and that commission has the power to create whatever committees it thinks necessary. It is not appropriate for the House to decide in advance which committees they should be. As has already been said, the commission will include people of great expertise, and they will decide, if they need a committee, to have one.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, I am the Bishop of a diocese that has in it five east London boroughs and a large part of Essex. It is important that, in strategies on these matters, the experience of London has an impact on the rest of the community. There is a danger in isolating the London experience in a way that not only disadvantages the rest of the community from tackling the issues but also in the end would disadvantage London.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I align myself with the comments of the noble Lords, Lord Ouseley and Lord Adebowale, on the central role of London. I agree completely that London is a home of diversity. I am not a born-and-bred Londoner but I have spent more of my life here than anywhere else. I accept completely what noble Lords have said about the importance and value of London's role in achieving the 2012 Olympics, and as a mirror to the world. None of that is disputed. The only question is: who is responsible for determining what committees the new commission should have?

We have said throughout, in response partly to noble Lords' points, that it is critical that the commission is as independent as it should be and has sufficiently flexible powers to do what it thinks is right. The CRE currently has a committee in London, and the commission may choose to have one there; however, echoing the sentiments of the noble Baroness, Lady Miller, and the noble Lord, Lord Lester, I do not believe that it is right for Parliament to dictate to the commission that it must. I am sure that the commissioners, in looking at our debates as the commission is set up, will be very mindful of what has been said, and that they will discuss the issues with noble Lords who have such amazing experience as the noble Lords, Lord Ouseley and Lord Adebowale. Solely on the basis that it is for the commission to decide, I ask the House to reject the amendments and that the noble Lord withdraw Amendment No. 15.

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I am grateful to all noble Lords who have participated in this debate on an amendment for a greater London committee. I understand exactly the arguments made all round, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendments Nos. 16 and 17:

Page 62, line 20, leave out "appropriate" and insert "reasonably sufficient"

Page 63, line 17, at end insert—

"(3) The Secretary of State shall have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining—

(a) its activities,

(b) its timetables, and

(c) its priorities."

On Question, amendments agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 18:

Page 64, line 19, leave out from "before" to end of line 21 and insert "either section 8 or section 11, in so far as they relate to disability, comes into force (to any extent)."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, many noble Lords will recall that, during our debate in Committee on the commission's community duty, noble Lords, particularly my noble friend Lord Carter, and the noble Baroness, Lady Darcy de Knayth, made very strong cases for bringing disability within the mainstream of the Clause 11 provisions, while recognising that disability is different and presents particular challenges. The noble Lord, Lord Lester, the noble Baroness, Lady Falkner, and others also raised concerns in Committee about the definitions of "community" raised in the Bills. Many noble Lords raised concerns about some of the drafting terminology, which, I think, my noble friend Lord Carter described as "unfortunate". My noble friend's concerns were echoed by many outside your Lordships' House who followed the debates and the establishment of the new commission with great interest. I agreed to look at those issues again. This group of amendments is the product of that further work.

The amendments remove the commission's particular disability duties at Clauses 10 and 20 and bring disability within the scope of its good relations duties in Clauses 11 and 21. Importantly, in doing so they permit the commission to promote or encourage the favourable treatment of disabled people, recognising that the Disability Discrimination Act is alone among our anti-discrimination provisions in that it requires action to be taken for disabled people in order to tackle inequality. Encouraging good practice in the treatment of disabled people is as important an aspect of the Disability Rights Commission's work as it will be for the new commission.

There was a debate in Committee about how the commission's Clause 11 duties would apply to those who, for example, do not identify with a community, or to those who feel they may belong to more than one community. The amendments also replace the term "communities" with references to "groups" and "members of groups". We believe that these provisions address noble Lords' points, and make it clear that the commission's duties apply to everyone, whether or not they identify as a member of a group or a community.

The amendments also address the concerns expressed in Committee about some of the drafting of Clause 11. They would replace the references to "sub-class" and "sub-group" with the perhaps less pejorative terms "smaller class" and "smaller group". They will also describe the commission's duty to,

"work towards the elimination of the involuntary isolation of communities", in terms of more positive outcomes—working towards enabling members of groups to participate in society.

Together, those amendments effect the three broad changes that we seek to make: first, to bring the disability duties within the scope of the commission's generic duty; secondly, to reflect more accurately that both individuals and groups fall within the scope of the commission's good relations duties; and, thirdly, to amend some of the drafting terminology that caused some concern for noble Lords and those outside the House. I beg to move.

Photo of Lord Carter Lord Carter Labour 4:00 pm, 19th October 2005

My Lords, we thank the Government, who have come all the way to meet the concerns that we expressed in Committee. Amendment No. 33, which amends Clause 3, retains the key values that disabled people depend on the new commission to promote. We are extremely grateful for that. The large group of amendments, starting with Amendment No. 41 where offending clauses were removed from the Bill, have been brought into the new clause. I am extremely grateful to the Minister. Disability is included in the new commission's duty to promote good relations between members of different groups, which is very important. That reads across to the duty in the Disability Discrimination Act. Under a separate provision, Clause 10 is deleted, as we asked. In addition, that unfortunate phrase "sub-class" is removed and is replaced with the phrase "smaller groups". We will just leave it at that. We are extremely pleased with all of that. We accept it all. It has met all of the concerns that we expressed. I am extremely grateful and thank the Minister.

Photo of Lord Addington Lord Addington Spokesperson in the Lords (Sport), Culture, Media & Sport, Spokesperson in the Lords (Disability), Work & Pensions, Deputy Chief Whip, People With Disabilities, Non-Departmental & Cross Departmental Responsibilities

My Lords, I echo what the noble Lord, Lord Carter, has said. People who take an interest in disability issues were a little worried at first that we had not got the tone right. I thank the Government for listening on this occasion and for paying attention to the concerns raised, which were based on very solid practical experience. I thank the Minister for listening and I hope that any praise that is given to any Ministers involved does not damn their further careers.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, I regard Amendment No. 41 as one of the most important amendments in the Bill. The promotion of equality opportunity is a key to the future for disabled people who have long suffered, for hundreds of years, discrimination. Now, a positive, constructive provision in the Bill for working on the promotion of equality opportunity is a major step forward. No one can say that Ministers do not listen to our representations. Thank you.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords (Communities & Local Government), Office of the Deputy Prime Minister

My Lords, let me say from the outset how very pleased I am that the Minister has been true to her word and has looked again at the definition whereby "communities" were the focus of efforts rather than the many individuals who comprise groups and communities. Those changes are most welcome and will add definitional clarity to the very good intentions behind this clause.

Amendment No. 47 relates to the principal clause dealing with good relations—that is, Clause 11. I am disappointed that the drafters of new Clause 46 have sought to remove paragraph (d), which placed on the commission the duty to,

"work towards the elimination of the involuntary isolation of communities".

The existing clause is flawed. It addresses only the involuntary isolation of communities instead of also recognising that some "voluntary" isolation may also be detrimental to social cohesion.

I understand that the Government's reluctance to address this issue is that they are concerned not to be seeking integration from those communities who choose the path of isolation as an article of faith or culture. I think that their concern here is mainly for orthodox religious communities. But the effect of my amendment, which covers voluntary and involuntary isolation, would not be to "force" communities or groups who choose isolation to integrate with each other or to integrate in general. It would place on the commission only the duty to "work towards" those aims.

I would not bring up that clause so late in the consideration of the Bill—it was there and I am sorry to see its removal—but it is important because the Minister has moved some way. As many people have said, the noble Baroness was a very listening Minister. Given the importance of events over the summer, in terms of the isolation and segregation of mainly minority communities—much of the debate today has covered those communities—it is quite surprising to see the removal of paragraph (d).

At a time when the Prime Minister and Home Secretary are calling for greater integration and buy-in from British Muslims and other minority communities into what they define as British values—I must say that I broadly agree with their aims—it is curious that the department is retreating from those laudable objectives when social cohesion is less good than it might be. Reading the report by the noble Lord, Lord Ouseley, a couple of years ago, for example, and by Ted Cantle, which touch on the detriment to community cohesion from isolation, it is clear that even inadvertently leaving communities to lead parallel lives cannot be good policy, especially as of itself it will not fulfil the new aims of paragraph (d), which is to work towards enabling members of groups to participate in society. So the new clause is not quite sufficient and it would be helpful if, through the amendments, we could reinstate the previous provision again. I hope that the Minister will consider that.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very grateful for all the support. The noble Baroness, Lady Falkner, warned me that she wanted to raise that matter and I am more than happy to look at it again. The Bill is being worked on by several departments; most of it does not belong to this department, it belongs to this ministerial team at the moment. I am happy to talk to the noble Baroness before Third Reading. I think we have achieved what she wants, but I hear what she says and am happy to talk to her.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 20 to 22:

Page 65, line 9, leave out "20" and insert "21, in so far as it relates to disability"

Page 65, line 13, leave out "10" and insert "11"

Page 65, line 13, after "it" insert "relates to disability and"

On Question, amendments agreed to.

[Amendment No. 23 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 24:

Page 65, line 23, leave out "section 10 above" and insert "sections 8 and 11 above, in so far as they relate to disability."

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Photo of Lord Carter Lord Carter Labour

moved Amendment No. 26:

Page 65, line 35, at end insert—

"( ) In exercising its functions the Disability Committee shall have regard to the views and experiences of mental health service users and those who have used mental health services in the past."

Photo of Lord Carter Lord Carter Labour

My Lords, in moving Amendment No. 26, I shall speak to Amendment No. 107. I know that my noble friend Lord Ashley will want to speak to Amendment No. 29. I assure my noble friends on the Front Bench that this is a probing amendment to seek assurances from Ministers that they expect the new commission to follow the example of the Disability Rights Commission in involving mental health service users in its work. That is extremely important.

I was a member of the Joint Select Committee that considered the draft Mental Health Bill. We took evidence from mental health service users, which brought home to us how important it is that they should be involved in any discussion of the work of the new commission. The DRC has a mental health action group, which has proved to be extremely helpful. We must remember that up to one in six people experiences mental health problems during the course of their lifetime, while 630,000 have severe mental health problems at any time, ranging from schizophrenia to deep depression. We were disappointed during discussion of the Disability Discrimination Act not to persuade the Government to include depression in the definition of disability; we will continue to press on that.

When I read the briefing on the amendment, I had a strong sense of déjà vu, because we were given those facts during the passage of the Mental Capacity Act and the Disability Discrimination Act and as evidence to the Joint Select Committee on the draft Mental Health Bill. It is worth reminding the House that people with severe mental health problems are twice as likely to die early as the general population. For example, people with a diagnosis of schizophrenia live on average for nine years less than other people.

I read the Sun—or, at least, the football pages, but little else—but I am told that in December 2001, the Sun had a headline,

"Nuts to be caged for life by docs", and, in June 2002,

"Psychos to be locked up for life".

That is the sort of exclusion from society that we want to avoid through all that the new commission does. So those are the reasons for tabling this probing amendment.

It is important that the group that advises the DRC should also argue that the new commission should give particular attention to those who experience discrimination on multiple grounds. Black and ethnic minority people with mental health problems, for example, are twice as likely to be involuntarily detained under the Mental Health Act as are white people.

So, for all these reasons, I hope the Minister will be able to give the assurances we seek in relation to this very real problem. I beg to move.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, I shall speak to Amendment No. 29, which is in my name, and Amendments Nos. 26 and 107.

In these early stages of the Bill we have made tremendous progress with the proposals we have put forward on behalf of disabled people. The Government have taken enormous trouble and care to understand the problems of disabled people. We have a fine Bill now, made better by these amendments. I am glad that the Minister—my noble friend Lady Ashton—and the Lord Chancellor have taken on board so many of our suggestions.

Perhaps I may also say a word about the briefings that we have received. Caroline Ellis of the Disability Rights Commission has briefed all members of the disability lobby—which has made a great deal of work for my noble friend Lady Ashton and my noble and learned friend the Lord Chancellor—and here are the results: Members on all sides of the House advocate changes and improvements. We are grateful to Ministers and for the briefings.

But without an explicit reference to disabled people as key stakeholders in the five-year review of the Disability Committee's future, there is a possibility—I put it no higher than that—that the views of disabled people will be neglected and ignored. This would be highly dangerous and very damaging and would follow the experience of the past, where they are pushed aside without their specific concerns being considered.

We heard a great deal a moment ago from my noble friend about mental health sufferers. They have been mentioned extensively but I feel that unless they are referred to specifically in the Bill they, of all people, will be neglected because mental health still has a stigma throughout Britain. My noble friend referred to the Disability Right Commission's mental health action group, which has played a very active and constructive role, but, despite its efforts and the efforts of many people in Parliament and outside, mental health sufferers are still regarded as the lepers of disability; they are still regarded with scorn, contempt and division in many quarters. People who are mentally ill should have an important place in the Bill. I hope the Government will be able to accept our suggestions.

Perhaps I may say a brief word about the Transitional Commissioner's term of office, which may be ended before it is necessary. There is no chance of transferring the knowledge and expertise of the Disability Rights Commission if this term of office is brought to an end too quickly. It needs time, it needs effort and it needs consideration. I hope my noble friend will be able to say, "Okay, on this occasion, too, we will meet what has been suggested, especially in view of the heavy workload of the DRC". You cannot transmit that overnight, so please extend the life of the Transitional Commissioner, if you can. I beg to move.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, before we go any further, I should say that we are debating Amendment No. 26, which states:

"Page 65, line 35, at end insert"— the words as printed on the Marshalled List—although of course Amendments Nos. 29 and 107 are grouped with it.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

My Lords, I am glad to hear that because that was the amendment I was going to speak to. I should like to support the amendment moved by the noble Lord, Lord Carter. I realise that it is a probing amendment, but, given my long association with the mental health charity Rethink, of which I am a patron, I emphasise how important it is to these charities and the people who benefit from them or participate in them to have such assurances as the Government give. What the Minister says will be in Hansard tomorrow, but a fortnight or three weeks later it will be in the documents that are distributed by those organisations and it is always very much appreciated. I am sure that the result will be quite satisfactory, but I emphasise that such assurances are very much appreciated outside this House.

Photo of Lord Addington Lord Addington Spokesperson in the Lords (Sport), Culture, Media & Sport, Spokesperson in the Lords (Disability), Work & Pensions, Deputy Chief Whip, People With Disabilities, Non-Departmental & Cross Departmental Responsibilities 4:15 pm, 19th October 2005

My Lords, I emphasise what the noble Lord, Lord Carter, said: mental health is not only one of the most hidden of debilitating conditions but also one of the most demonised. The lack of knowledge and the folklore that has been built up over the generations is massive; virtually no other group has to deal with this. A few other groups may be seen as odd, but none is seen as threatening. A clarification amendment would probably be better than a probing amendment here. Clarification that the Government are prepared to take on the groundbreaking work that the DRC has been doing would be helpful. We have a long way to go in public education if nothing else in this area, and I hope that the Government will make some positive comments. The other two amendments in the group are self-explanatory. I hope that the Government will be able to embrace at least the thought that lies behind them.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I wish merely to say how much I agree with my noble friend Lord Ashley on this very important matter. There is only one thing worse than the provision for mental health in the National Health Service and that is the crumbling service supplied to help those with sexually transmitted diseases. When one says that, one sees how bad the provision is for mental health. This is a special problem and I hope that my noble friend will treat Amendment No. 26 with some warmth.

Photo of Baroness Darcy de Knayth Baroness Darcy de Knayth Crossbench

My Lords, I should like to give an extra shove to the expert probe of the noble Lord, Lord Carter, for Amendment No. 26 with regard to making encouraging noises about setting up a mental health action group again. The noble Lord said that he had a feeling of déjà vu and I did too. I remember the chair of the National Disability Council, which preceded the DRC, saying that when people were interviewed for a job, they preferred the gap in their CV to be interpreted as a possible spell in prison rather than in a mental health hospital. We still have a very long way to go; we do not seem to have progressed very much since then. A positive, encouraging statement from the Minister would be extremely valuable.

I hope that the Minister will be able to accept Amendment No. 29 on consultation, so expertly moved by the noble Lord, Lord Ashley, or at least come back with something of her own. I would love her to accept Amendment No. 107 on the transition commissioner but if she does not feel that she can at present, I would urge her to think very carefully about it before Third Reading. I am delighted that the EOC and the DRC supported putting the transition commissioner on the same basis as their commissioners. The DRC says that at least one formal investigation and a number of legal cases would probably just be coming to a crucial point when, as the Bill stands, their transition commissioner would fizzle out. I hope that the Minister will consider that very carefully.

Photo of Baroness Wilkins Baroness Wilkins Labour

I add my strong support to the three amendments, particularly Amendment No. 26. People with mental health problems are far too easily forgotten when discussing disability issues and, as we have heard, they face very high rates of exclusion. As well as supporting Amendment No. 29, I support Amendment No. 107 in particular. It is important that the wealth of knowledge and expertise which the Disability Rights Commission has built up and on which people in all parts of the House depend and draw extensively is transferred effectively and not lost. I hope that the Minister will accept the amendment.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very grateful to everyone who has spoken in this important debate. I begin with Amendment No. 26, about which noble Lords have made clear their views. I completely endorse what has been said about the particular issues that affect those with mental health problems. Indeed, the Social Exclusion Unit report in 2004 concluded that stigma and discrimination against people with mental health problems is pervasive throughout society, backing up everything that noble Lords have said. Despite a number of campaigns, there has been no significant change in attitudes.

I agree completely with my noble friend Lord Carter that there is a lot to be done. The Disability Rights Commission's mental health action group has made good progress in drawing from the range of networks and expertise available to it. I would expect the commission to learn and draw from the Disability Rights Commission's experience in this area and to continue with a level of engagement through its disability committee, which can continue to make a difference. I am not suggesting that I will include an express requirement in the Bill—noble Lords will know my aversion to lists in all possible ways. However, I think that what my noble friend Lord Wedderburn and the noble Lords, Lord Williamson and Lord Addington, as well as the noble Baroness, Lady Darcy de Knayth, were after clarification about what we expect the commission to be doing. I hope that my answer will satisfy them.

On Amendment No. 107, which I will take out of order for a bit of fun, the noble Baroness, Lady Darcy de Knayth, asked in Committee whether the term of appointment of all transition commissioners could be on a common basis. I understand that and I have talked with Mr Bert Massie at length on the issue. We do see some merit in the argument. In a classic way, my note says that this is an issue on which we would like to reflect further. That is code for "we want to do it but we just need to get clearance". On the basis that we can go ahead, there is nothing between us. We just need to make sure that we get agreement throughout the Government. I hope that that will make noble Lords feel very happy.

On Amendment No. 29, my noble friend Lord Ashley of Stoke said in Committee that he wanted to see a provision included in the Bill requiring disabled people to be among those consulted. He recognised that they probably would be consulted and I sought to confirm that in my response. However, I understand why noble Lords have returned to the matter today. With that in mind, and to remove any vestige of doubt I accept that amendment and thank my noble friend for tabling it.

Photo of Lord Carter Lord Carter Labour

My Lords, before I respond to the Minister, I apologise to the noble Lord, Lord Tordoff, on the Woolsack. As a Deputy Speaker, I should have known that I should have said "I beg to move" and then given him time to put the question.

I am extremely grateful to my noble friend the Minister once again for all the assurances that we have received on Amendment No. 26. I am sure that they are acceptable. She says that she wishes to reflect further on Amendment No. 107. If she has not reflected sufficiently by Third Reading, we shall table on amendment to settle her resolve. Of course, we are delighted for my noble friend Lord Ashley that she has accepted Amendment No. 29. I beg leave to withdraw Amendment No. 26.

Amendment, by leave, withdrawn.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, I remind the House that if Amendment No. 27 is agreed to I cannot call Amendment No. 28 because of pre-emption.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 27:

Page 66, line 6, leave out paragraphs (a) and (b) and insert "sections 8 and 11 in so far as they relate to disability".

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

moved Amendment No. 29:

Page 66, line 16, after "consult" insert "disabled persons and other"

On Question, amendment agreed to.

[Amendment No. 30 not moved.]

Photo of Lord Ouseley Lord Ouseley Crossbench

moved Amendment No. 31:

Page 66, line 40, at end insert—

"PART 5A

EQUALITIES COMMITTEES

:TITLE3:Establishment

64A (1) The Commission shall establish decision-making Equalities Committees to be known as—

(a) the Disability Committee,

(b) the Sexual Orientation Committee,

(c) the Religion or Belief Committee,

(d) the Age Committee,

(e) the Race Committee, and

(f) the Gender Committee.

(2) The Commission shall ensure that the Equalities Committees are established before section 8 comes into force (to any extent).

:TITLE3:Membership

64B The Commission shall ensure that—

(a) there are not less than 7 or more than 9 members of each of the Equalities Committees,

(b) no fewer than one half of the members of each of the Equalities Committees have personal or direct experience of the cause of discrimination or prejudice referred to in section 11 with which their Equality Committee is concerned,

(c) the chairperson, (or joint chairpersons, where that is the case), of each of the Equalities Committees has personal or direct experience of the cause of discrimination or prejudice referred to in section 11 with which his or her Equality Committee is concerned,

(d) no fewer than one half of the members of the Disability Committee are persons who are (or have been) disabled persons,

(e) no fewer than one half of the members of the Race Committee are persons from a black or other ethnic minority background, and

(f) no fewer than one half of the members of the Gender Committee are women.

64C The appointment of each member of the Equalities Committees shall be for a period of not less than 2 years or more than 5 years, subject to the possibilities of—

(a) reappointment, and

(b) dismissal in accordance with the terms of appointment.

:TITLE3:Functions

64D (1) The Commission shall by virtue of this paragraph be treated as having delegated to the Equalities Committees—

(a) the Commission's duty under section 8 in so far as it may be fulfilled by the exercise of the powers conferred by or referred to in—

(i) section 12,

(ii) section 14(1)(a), (c) or (d) (or paragraph (e) or (f) in so far as it relates to paragraph (a), (c) or (d)),

(iii) section 15,

(iv) section 16,

(v) section 21,

(vi) section 29,

(vii) section 30, or

(viii) section 32,

(b) the Commission's duty under section 11 in so far as it may be fulfilled by the exercise of those powers.

(2) Delegation under this paragraph shall not prevent the exercise by the Commission of a power, or the fulfilment by the Commission of a duty, by action which relates to any one or more than one of the causes of discrimination or prejudice referred to in section 11.

(3) Before exercising a power to which paragraph 21(2) or 22(3) applies an Equality Committee shall consult the Scotland Committee.

(4) Before exercising a power to which paragraph 29(2) or 30(3) applies an Equality Committee shall consult the Wales Committee.

64E Before exercising a power or fulfilling a duty in relation to disability, sexual orientation, religion or belief, age, race, or gender, the Commission shall consult the relevant Equality Committee.

64F Each Equality Committee shall advise the Commission about the exercise of the Commission's functions in so far as they relate to the subject or remit of that Committee.

:TITLE3:Resources

64G In allocating its resources the Commission shall ensure that each of the Equalities Committees receives a share sufficient to enable it to exercise its functions.

:TITLE3:Report

64H (1) Each of the Equalities Committees shall for each financial year of the Commission submit to the Commission a report on the Committee's activities in that year.

(2) The Commission shall incorporate each report of each of the Equalities Committees under sub-paragraph (1) into the relevant annual report of the Commission.

:TITLE3:5-year review

64I The Commission shall arrange for a review of the activities of the Equalities Committees to be conducted as soon as is reasonably practicable after the end of the period of five years beginning with the date of the commencement for all purposes of sections 8 and 11.

64J The following may not participate in the review (although those conducting the review may seek views from any of the following)—

(a) a Commissioner or former Commissioner,

(b) staff or former staff of the Commission,

(c) a person who is or has been an Investigating Commissioner, and

(d) a person who is or has been a member of a committee established by the Commission.

64K The Commission shall ensure—

(a) that those conducting the review consult persons whom they think likely to have an interest,

(b) that those conducting the review submit a report to the Commission, and

(c) that the report is published.

64L The Equalities Committees may not be dissolved under paragraph 14(c)."

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I realise that having discussed the amendment for a Greater London committee, which was withdrawn, some of the arguments may be repeated here. I shall not waste too much of the House's time, but I wish to be clear that these proposals are very serious. They are made in the context of wanting to align the proposal for committees for equality, for sexual orientation, religion or belief, age, race and gender alongside the proposals for the Disability Committee. In doing so, we recognise and acknowledge the important role that the Disability Committee will play. The value of having other, similar committees would be the same as that for the Disability Committee; they would bring harmony to the work of the commission, rather than being disruptive, as has been said in previous discussions. Rather than creating a delay by leaving the proposal to the commission, there is no reason why it should not be in the Bill and become a requirement on the commission. I hope that it could be reconsidered as something that is acceptable. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I shall not repeat my general points about inserting inappropriately prescriptive provisions into the Bill, but I should like the noble Lord to reflect on the following. This is not an Equality Commission alone; it is a Commission for Equality and Human Rights. If the noble Lord was right in his general approach, it would also follow that there should be in the human rights area of the commission a series of committees dealing with torture, inhuman and degrading treatment, forced labour, trade union rights within the human rights framework, free speech, privacy and so on. I suggest that we cannot look at this commission as being only about equality—it is about equality and human rights—and its membership and committee structure must meet the needs of the holistic view of the overall commission. That presents a further difficulty with breaking into "commitology", as it is known in Europe.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I see that the noble Lord, Lord Ouseley, has learned the art of degrouping on the Floor of the Chamber, which is very impressive. I agree with what the noble Lord, Lord Lester, said. While I understand entirely the sentiment behind what the noble Lord, Lord Ouseley, seeks to do, the amendment leads us straight into the silos that I have sought to avoid at every conceivable stage of the Bill. It is really important that the new commission can operate by developing cross-strand working; that is at the heart of what we want the commission to be. We do not want to set up in legislation an elaborate and complex committee structure, for all the reasons that noble Lords have raised today and at other stages of the passage of the Bill. It is very important that the commission uses its resources and sets up the appropriate committees permanently, semi-permanently, temporarily or for particular reasons as it seems fit. It is very important that it does so in the context of wanting to work with cross strands. For those reasons, I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Fundamental duty]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 32:

Page 2, line 2, leave out "the creation" and insert "encouraging and supporting the development"

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, this group of amendments responds to concerns that Clause 3 gives the commissioner licence to practise social engineering. I thank particularly the noble Earl, Lord Ferrers, the noble Lord, Lord Patten—who is not in his place—as well as the noble Baroness, Lady Miller of Hendon, for expressing with sizzling passion their disquiet at the drafting of this clause, specifically the use of the term "creation of a society" and the depiction of the clause as a fundamental duty, which together appeared to them to overstate the role and function of the commission.

The amendments replace the term "creation of a society" in Clauses 3 and 13 with the term, "encouraging and supporting the development of a society". That is, I hope, closer to the amendment tabled by the noble Earl, Lord Ferrers, in Committee, and better reflects the spirit and purpose of the clause. The clause does not give the commission licence to engage in social engineering or require it to march us all out into some homogeneous mass; rather it describes the long-term outcomes that the commissioners work towards in carrying out its duties.

We are pleased too that the descriptive header for this clause will also be revised. Noble Lords who have read Hansard will recall that the noble Earl, Lord Ferrers, was surprised and alarmed that parliamentary procedure does not permit amendments to the cross-headers of a Bill. Indeed, it is a matter for parliamentary counsel alone.

The powerful arguments put by the noble Earl and other noble Lords in Committee have obviously been persuasive—the draftsman has duly responded—and the descriptive "fundamental duty" cross-header will be replaced with "general duty".

I believe that these amendments address the principal concerns raised during Committee debate about this clause. I commend this package to the House. I beg to move.

Photo of Earl Ferrers Earl Ferrers Conservative 4:30 pm, 19th October 2005

My Lords, I thank the noble and learned Lord very much for having listened to those arguments and for having been kind enough to consider them and agree to alter the Bill. I had not realised that the descriptive header could not be changed. I was surprised that it could not be changed as I thought that anything which appeared in front of Parliament in a Bill could be changed. I am grateful to the noble and learned Lord for having said that it could not be changed but nevertheless for having found that it could be. The new words that have been suggested go all the way to meeting the points about which most of us were concerned.

I return to a point about which I was concerned in Committee. I am worried about the huge powers that officials have at present as regards allocating funds, and which are likely to increase. I referred to Barnabas House, a hostel for 18 homeless people run by a Baptist church in King's Lynn. It receives a grant of £150,000. The noble Baroness, Lady Ashton, was kind enough to write to me about it. But the fact is that staff at Barnabas House have been told that they must not have Bibles in the rooms, say grace before meals or do anything which is too religious because it might upset those who are non-Christian, even though the organisation is a Christian one. The organisation is now told that staff must not even say prayers at the beginning of their daily meeting. I find it astonishing that officials should interfere in such a way. The officials belong to the Supporting People programme. The interference constitutes the threat that, "If you do not do what we say, the funds will be removed".

The noble Baroness, Lady Ashton, said in her letter:

"An action plan has been agreed between Norfolk County Council and Barnabas House and the local Supporting People team along with the West Norfolk Council for Voluntary Services (WNCVS), the Voluntary Hostels Group (VHG) and King's Lynn Churches".

That is six organisations involved in a poor little hostel which is trying to help homeless people. All these guys will crawl all over it and tell the staff what to do. I believe that is, frankly, a misuse of bureaucracy. It should not be necessary for that to happen. The noble Baroness, Lady Ashton, referred in her letter to what the noble Baroness, Lady Scotland, said; namely, that prayer should not be a prerequisite of receiving a public service, nor should people be preached to while receiving a public service. There should be no compulsion. I understand that but perhaps I should declare an interest in that I am High Steward of Norwich Cathedral. The cathedral has a lot of repair work carried out for which it often receives money from English Heritage. It would be absurd to say that because the cathedral had received public money it should not conduct services for fear that it might upset a passing visitor from the Far East who may not be a Christian. These matters are absurdities which should not be allowed to continue.

In my view the Supporting People programme is not supporting people. I refer to Thornage Hall, a Camphill Village Trust home. I declare an interest in that I am a patron of it and I also have a daughter who was there. That home looks after people with all kinds of handicap. However, instead of supporting people, the Supporting People programme is virtually undermining them.

The officials say that people should not sit down to meals together at set times but should be free to eat and come and go when they want to. Families eat together at the same time; even your Lordships eat together. What is wrong with that? How can officials say, "you should not do that; it is against our philosophy"? They even talk about decommissioning the organisation as if it were some sort of obsolete aircraft carrier. I am not sure what decommissioning means, but it is obviously not very nice.

Over all that hangs the threat of losing grants and people suffering. I say to the noble and learned Lord the Lord Chancellor in the nicest possible way—why do the Government not support those organisations? Why do local authorities not support them? My guess is that it is because the Government, maybe government officials, send a message down saying, "this is the kind of society that we want and you—local authorities—must use your money in the way in which we—the Government—want".

I hope that the noble and learned Lord and the noble Baroness, Lady Ashton, will look into those points, because they are serious. At present, officials wield colossal power over individuals and organisations. It is not the job of officials to tell religious organisations how to run their organisations or to tell professional people, who for years have looked after handicapped people, that what they are doing is wrong and is not the way that the Government want them to do it. My fear is that the new commission, having much more money and much more power, may inadvertently be giving much more power to officials to say in what way organisations should run their affairs instead of backing those organisations.

I do not expect the noble and learned Lord the Lord Chancellor or the noble Baroness, Lady Ashton, to answer those points today. I would be grateful if one of them—perhaps the noble and learned Lord the Lord Chancellor if he had time on his hands—could look into the important principle that these organisations should help people. The officials are being given tremendous power, and my fear is that they may try to run those organisations as opposed to helping them to help themselves.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I am sure that the noble and learned Lord the Lord Chancellor will take on board what my noble friend has said. Before I make my few remarks, I apologise not only to the noble and learned Lord the Lord Chancellor and the Minister but to the House for walking out. I had done my calculations wrong, and I thought that there was another five minutes to go.

Clause 3 as it was and Clause 13 had a fundamental duty to create a society, which was something that I felt so strongly about that I could not wait to get back to thank the noble and learned Lord the Lord Chancellor and the noble Baroness for agreeing and meeting our objections. We really are very grateful, because we regarded them as constitutional matters. The way in which that has been handled and the discussion on a constitutional matter does show the value of this House.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, someone must congratulate the Government on their semantic imagination. To replace "the creation" with "encouraging and supporting the development" is a most remarkable victory of imagination by my noble and learned friend. I hope that his ability in this respect spreads itself across the face of legislation to get a consensus in the remarkable way that he has achieved.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I rise with some trepidation because I am not going to join the great chorus of "hurrahs". I am grateful to the Government for thinking again about this, but the amendments do not go far enough. The concern about the wording of Clause 3 relates to two issues: first, whether it would make it difficult to succeed in any judicial review of the commission's actions and, secondly, whether it was, in terms of normal statutory drafting, an excessively broad duty for a quango.

In Committee, the issue of judicial review was raised by my noble friend Lady Miller, who had obtained advice from a number of lawyers who suggested that it could be prayed in aid by the commission to provide a legal basis for almost any action it chose to take.

That would make it virtually impossible to succeed in challenging the commission by judicial review.

The issue of drafting was raised by several noble Lords, including the noble Lord, Lord Holme, in a letter dated 21 June to the noble and learned Lord the Lord Chancellor on behalf of the Constitution Committee, as regards which I declare an interest as a member. He referred to the whole of Clause 3 as containing,

"language of a generality and depth that is seldom found in Acts of Parliament . . . their interpretation will require the making of far-reaching and sensitive decisions that will turn on the Commission's political, social and cultural perceptions".

Sadly, I do not think that the small change proposed by the Government today goes far enough. The fact remains that the commission is being given a huge overarching mandate in relation to the whole of society. The new wording leaves in place the same possibility that actions for judicial review will fail because nothing, but nothing, would fall outside the scope of the commission's "fundamental duty". It remains an exceedingly general power whose application could have far-reaching implications for our society. I really hope that the Minister will take it away and think again.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, may I deal with the point raised again by the noble Baroness, Lady O'Cathain? I suppose that I make my living out of judicial review proceedings, normally but not always on the side of the applicant; sometimes I am on the side of the public authority. I would like to give some reassurance. I have no doubt at all that the commission will be entirely subject to judicial review on all the main principles.

As I understand those principles, the first is that the commission has to act within the four corners of the statute giving it power—it cannot frustrate the statutory object. For example, were the commission not to seek to promote equality but the opposite—to frustrate the operation of the Bill—that would be the first ground. That is the principle of legality. Then, if the commission were to act unfairly in any of its procedures—for example, if it were not to apply the principles of natural justice and fairness that have been part of our common law for centuries—that would be the second ground. If it were to act unreasonably or irrationally—to take leave of its senses in a legal sense—or, these days, if it were to act without a sense of proportion and use a steamroller to crack a nut, all those would be grounds for judicial review.

I do not think that the purpose clause here is any barrier. It simply sets out the broad aims of the commission, but all those principles would apply. I realise that I am speaking as an advocate rather than as a noble and learned Lord, and doing so in the presence of the Lord Chancellor, who will now explain why I am completely wrong.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, diffidently but I hope authoritatively, I shall say that I completely agree with the noble Lord, Lord Lester. I shall put the same point in a slightly different way. The commission is plainly susceptible to judicial review. The three basic principles on which it could be judicially reviewed are: first, if it exercised a power that it did not have under the Bill, because it can do only what the Bill allows it to do; secondly, if it does not act Wednesbury-reasonably, which means that it has to act either reasonably or rationally within the meaning of the well known line of decided cases; and thirdly, if it does not act fairly. The existence of what is now called a general duty rather than a fundamental duty does not detract at all from those principles. I very much hope that that will reassure the noble Baroness, Lady O'Cathain, in relation to her concerns. Like everybody else in the House, I would be extremely keen to make it clear that this body is susceptible to judicial oversight, and that Clause 3 is not intended in any way to dilute or reduce such oversight.

I thank noble Lords who supported the amendments. I cannot deal in detail with the points made by the noble Earl, Lord Ferrers, save to say that I join him in astonishment that six bodies could discuss whether grace should be said before meals at a homelessness establishment, and that eating together is not to be encouraged. I join him in saying that, although it is right that government bodies give grants, it is equally right that those institutions run themselves; that is presumably why they are there. I do not think that the noble Earl is suggesting anything to the contrary, but I should make it clear that the types of interventions that he describes would not be either the function or the purpose of the body such as the commission that we are setting up. I shall look into the particular examples he gave. I give no guarantee of providing any satisfaction, but they certainly seem to be issues that should be looked into. I commend the amendments to the House.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 34:

Page 2, line 26, at end insert—

"(3A) The Commission shall send the plan and each revision to the Secretary of State, who shall lay a copy before Parliament."

On Question, amendment agreed to.

Clause 6 [Disclosure]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

This group of six linked amendments is intended to slightly refine the provisions on national security matters that we introduced in Committee. They relate to Clause 6, which limits disclosure by the commission of certain types of information. It prevents the disclosure of information provided to the commission by an intelligence agency unless that agency has authorised the disclosure.

Amendments Nos. 35, 36 and 37 clarify that information subject to enhanced protection by reason of its national security sensitivity will now include information "relating to" an intelligence service as well as information "provided by" an intelligence service. The purpose of this clarification is to ensure that the statutory provision in subsection (4) that prohibits the commission from disclosing any information provided by an intelligence agency without its consent now extends not only to material provided by an intelligence service—that is, the Security Service, the Secret Intelligence Service or Government Communications Headquarters—but material relating to an intelligence agency which may have been provided to the commission by a third party. Since the aim of this provision is to prohibit the disclosure, even in a commission report of an inquiry or investigation, of information that would prejudice national security, it seems sensible to include information relating to, as well as provided by, an intelligence service. Subsection (4) of Clause 6 will therefore now provide that the commission may not disclose information relating to, as well as that provided by, an intelligence service, unless the relevant intelligence service itself authorises the disclosure.

Schedule 2 provides powers for the commission to issue a notice requiring the provision of information during an inquiry, investigation or assessment of a public sector body and if necessary seek an injunction to enforce the notice through applying to the county or sheriff courts. In the case of an intelligence service a different procedure applies. An intelligence service may give notice to the commission that it intends to disregard the notice on specified grounds of national security. The commission may, however, apply to the Investigatory Powers Tribunal to have the notice enforced. Amendments Nos. 90 and 91 to Schedule 2 provide necessary instruction on the procedure that the tribunal should follow. They provide that the Investigatory Powers Tribunal must apply the principles of judicial review in considering an application by the commission for an order to enforce a notice it has issued to an intelligence service to disclose information. In the absence of such a provision, it is likely that the tribunal would apply judicial review principles, but it would not be obligatory. Since the policy intention is that such principles are applied, for the avoidance of doubt it seems sensible to make express provision for that on the face of the Bill. That is what we have done.

Amendment No. 92 extends the class of material that the commission will be required to protect, in a way that the Secretary of State may specify, to include information or documents relating to an intelligence service as well as information and documents provided directly to the commission by the intelligence service. This is a similar provision to the amendment that I have just mentioned. Previously, the Bill applied a statutory bar to disclosure without consent only to material provided by the intelligence services. Likewise, the commission would be under an obligation only to protect documents provided by the services. This amendment and Amendment No. 36 extend the provision to cover materials relating to the intelligence service. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I have no objection to the amendments but, as I understood what the noble and learned Lord the Lord Chancellor was saying, there could be circumstances in legal proceedings where the court would be able to decide whether the disclosure was necessary in the public interest. As I understand it, that would be the position, but I entirely agree with the scope of the amendments as they stand.

I have one further point. I may be being completely stupid—I probably am—but Clause 6(3)(g), which does not relate specifically to the point that we are discussing, states that the subsection authorises a disclosure made,

"if the information was acquired by the Commission more than 70 years before the date of the disclosure".

On the face of it, that seems a very odd idea, and I wonder whether there is a printing error.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

I agree with the noble Lord's second point. I shall need to think about this, but I believe that it is envisaged that if the information were given to the commission today, then in 2075, even without the consent of the intelligence services, it would be possible for the commission to disclose the information. I believe that that is the effect of the wording, but perhaps I may check the position and ensure that that is the case.

The noble Lord's first point related to whether the court had a specific power in this matter. I do not think that such a power is set out in the Bill. The only power given to anyone is in relation to the Investigatory Powers Tribunal.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendments Nos. 36 and 37:

Page 3, line 26, after "by" insert "or relating to"

Page 3, line 26, leave out "the" and insert ", nor may the Commission make, a"

On Question, amendments agreed to.

Clause 7 [Scotland: human rights]:

Photo of Lord de Mauley Lord de Mauley Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, this amendment would place an obligation on the commission to promote awareness and understanding of the fact that people have responsibilities as well as rights. In Committee, I mentioned a 1997 report by a group of senior politicians from all over the world, including the late Lord Callaghan, on a proposed universal declaration of human responsibilities. I also mentioned four examples of situations where people show a tendency to ignore or forget their responsibilities in claiming their human rights.

The noble Baroness the Minister kindly wrote to me recently giving her objections to our proposed amendment on this subject at Committee stage. She explained in particular that it was the linking of rights to responsibilities to which the Government objected. She pointed out that some of the rights protected by the Human Rights Act are absolute rights, such as the right to life and the right not to be subjected to torture. That, of course, we accept. The Minister also helpfully explained that, in her view, the concept of balancing one's own rights against the rights of others is a different concept from that of responsibilities and is already within the scope of the commission's duty under Clause 9.

Perhaps the noble Baroness can explain to your Lordships how that is reconciled with the words of the Prime Minister on the "Today" programme on 16 September on the subject of responsibility, when he said:

"With rights come responsibilities, and if people want the right, whether it is the right to stay here or the right to freedom of speech, there are always limits on that: just as there are limits to inciting racial hatred, there are limits to inciting people to commit offences against other people . . . a right to what people accept as human liberties . . . has always been qualified by some sense of duty or responsibility".

If that is not enough to convince the Minister perhaps I can quote from the Chancellor of the Exchequer—perhaps the next leader of her party—at the recent Labour Party conference, when he said,

"I learned from my mother and father that for every opportunity there was an obligation, for every demand a duty, for every chance given, a contribution to be made. And when they said to me that for every right there was a responsibility, for them that was not just words. What they meant was quite simple and straightforward, for me, my moral compass".

He went on to say,

"In community relations, the respect for diversity and the rights of individuals is matched by the responsibility to integrate as a community and each play our part as citizens. In a family policy, in parenting contracts and orders, support for parents matched by responsibilities they accept", and much more besides in the same vein.

It is not so much the fact of the existence of rights and responsibilities with which we are concerned, but it is the public's understanding thereof. As I suggested in Committee, we need an authoritative body to be responsible for spreading understanding that human rights involve the taking of responsibility. I suggest that it would be far better that people should be educated than that they should waste the court's time. What better body to undertake that education could there be than the Commission for Equality and Human Rights?

We would be happy to accept altered wording to give effect to our amendment if the Minister can help us, but in view of the apparent wholehearted agreement of the two most senior members of her party, I find it hard to see, in the circumstances, how she can possibly continue to resist the intent of this amendment. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, for every right there is a correlative duty. A legal right does not mean anything unless someone has a duty in respect of that right. If I have a right to non-discrimination in employment, my employer has a duty not to discriminate against me as his worker or employee. This amendment relates to Clause 8(1)(d) which comes under the equality enactments. When it says,

" promote awareness and understanding of rights", it necessarily means that, without the need for any further language at all, the commission will be promoting awareness and understanding both of the rights of workers and the responsibilities of employers, both of the rights of tenants and the responsibilities of landlords, both of the rights of pupils or students, and so on. This is not controversial, politically or otherwise; it is simply unnecessary because it is necessarily there within what the commission has to do.

Photo of Baroness Warnock Baroness Warnock Crossbench

My Lords, I support what the noble Lord, Lord Lester, has just said. It seems to me that there is an endemic confusion about the connection between rights and responsibilities. It would be very nice if everyone who claimed a right also claimed that they had other responsibilities to society, but the correlation between rights and responsibilities surely goes the way mentioned by the noble Lord, Lord Lester.

If someone has a right of way over my land I have a duty not to inhibit him from crossing my land. The duty and the responsibility that are correlative to the right goes to the person who must not inhibit the person walking across the land. Of course, I hope that, morally, the person who walks across my land will not destroy my fences, but that is not a correlation. I have a duty to keep open the path and I believe that this amendment would serve to exacerbate what is already to me a very irritating confusion that keeps cropping up, not least in what the Prime Minister himself said.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I agree with the analysis of the noble Baroness, Lady Warnock, and the noble Lord, Lord Lester; namely, if I have a right not to be discriminated against, my employer or the person providing me with services has a responsibility not to discriminate against me. I also agree completely with the analysis of the subsection by the noble Lord that in relation to those rights, there are responsibilities and people must not infringe people's rights. I perfectly well understand what the noble Lord, Lord De Mauley, is saying.

With the greatest and most profound respect for the noble Baroness, Lady Warnock, I do not believe that there is much confusion about this. There is the right and responsibility of the kind mentioned by the noble Lord, Lord Lester, but there is also the position that when one is given a right, one has to recognise that one has some responsibilities as well. I thought that the example given by the noble Baroness, Lady Warnock, was absolutely perfect. If I have a right to walk over her land, I have a responsibility to use that right in a sensible and thoughtful way.

The noble Lord, Lord De Mauley, appears to be aiming at that in his amendment. However, for all the reasons given, it does not get there. The principle he describes is right. I—and I would say this, wouldn't I?—completely support the extracts of the speeches from our Prime Minister and the Chancellor of the Exchequer, which precisely express it and, with the greatest respect, express it without confusion.

The amendment proposed by the noble Lord, Lord De Mauley, does not hit the target or get anywhere near it. Furthermore, I do not believe that an amendment is the way to deal with the issue because one is inserting responsibilities into a Bill which create rights and the correlative responsibilities, but do not deal at all with what the noble Baroness, Lady Warnock, rightly described as the moral responsibility that goes with them. I believe that we should try to keep moral responsibility outside legislation.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 5:00 pm, 19th October 2005

My Lords, would I not be right in saying that if a worker brought a claim of discrimination and behaved unreasonably, he would not be able to succeed in that claim in any event? Does it not apply to any assertion of rights that the claimant must demonstrate that he is not abusing his rights? Therefore, the notion of not abusing your rights is also built into the notion of rights and duties

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, indeed, and that is reflected in specific provisions. I do not want to enunciate a general principle, but, subject to the terms of the statute, that is right. Therefore, my response to the noble Lord, Lord De Mauley, is that it is an important point with which I agree, as defined by the noble Baroness, Lady Warnock, and the noble Lord, Lord Lester. With respect, I ask him to consider whether it is wrong to try to deal with the matter in legislation, but to recognise that we both agree on the broad approach that should be taken to rights.

Photo of Lord de Mauley Lord de Mauley Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I thank the noble Lord, Lord Lester, and the noble Baroness, Lady Warnock, for their contributions. I also thank the noble and learned Lord the Lord Chancellor for his comments, for which I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

moved Amendment No. 40:

Page 4, line 25, at end insert ", and

( ) conduct its affairs in the public interest and with an appropriate degree of independence"

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, this simple and short amendment requires the CEHR to conduct its affairs in the public interest and with an appropriate degree of independence. I introduced an identical amendment in Committee and I withdrew it in order to consider the Minister's reply. That I have carefully done, but despite the assurances that the Minister gave me in, I accept, entirely good faith, I still feel that the concept ought to be spelt out in black and white not only for the benefit of the public but for the guidance of the CEHR and any tribunals which might have to adjudicate on any matter coming from it.

The amendment was inspired by the identical provision in a Private Member's equality Bill introduced by the noble Lord, Lord Lester, in 2003. After expressing his surprise at being reminded of his authorship of this highly commendable concept, the noble Lord told your Lordships that he certainly agreed with the substance of what I had said. Later in the same brief debate, he exacted an acknowledgement from the Minister that if the commission were not to act in the public interest or abused its powers, the courts could intervene.

On the abuse of powers, yes, clearly the courts could intervene, would intervene and no doubt should intervene. But deciding what is in the public interest is a subjective political opinion for angels. I suppose that it is probably not an area which judges would want to rush into—and nor should they. Judges are there to interpret the law and not to make or even to define public interest or public policy. The responsibility of taking the public interest into consideration in deciding cases before it belongs to the powerful organisation that the Bill is creating. It is likewise essential that it should act entirely independent of the Government and not be swayed by populist announcements from the soapbox by Ministers of whatever government happen to be in power at that time.

When the Bill originally reached your Lordships' House, I was concerned with the degree of control being sought by the Secretary of State over the activities of the commission; by the power of the Secretary of State to direct it to do this or that; and by the lack of any requirement to account, via the Secretary of State, over its future plans. I am grateful to the Minister for having gone a long way to meeting those concerns in a number of important areas—not all of them, but a satisfactory number, which again underlines the importance of this Chamber.

Do the Government think that there would be anything wrong in the commission basing its actions on what it perceives to be the public interest? Do they believe there is anything wrong with this quasi-judicial organisation acting with what I and the noble Lord, Lord Lester, very moderately requested: namely, an appropriate degree of independence? Will the Minister tell us yes or no? If, as I am sure, the answer is no, there is nothing wrong with either statement. The noble and learned Lord the Lord Chancellor would say he did not think there was anything wrong with the statement—at least that is what I think. There is no reason why those principles could not be spelt out in crystal-clear words. This would certainly put the matter beyond doubt in the minds of the commission. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, it is always amusing to have one's words quoted back at one, and I am grateful to the noble Baroness, Lady Miller of Hendon, for recalling them. The second limb of this amendment is met entirely by the Government's amendments, because they have now secured what is called an appropriate degree of independence in their amendments to the Bill.

So far as the first words are concerned, I now realise that the disadvantage of my own words is that they do the very thing that the noble Baroness rightly deprecates, which is to involve the courts in unnecessary litigation about what is or is not the public interest. That would not be desirable. The public interest is defined in the Bill we are debating as the equality and human rights provisions that have to be interpreted and applied by the commission and the courts according to law, and if the commission were to frustrate the statutory objects or act contrary to law, it would be subject to judicial review. Neither the first nor second limb is necessary now.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I am grateful to the noble Baroness, Lady Miller, for raising these important issues. The answer is yes, of course the commission should operate responsibly and in the public interest; yes, of course it should act with the appropriate degree of independence. Again, though, echoing what the noble Lord, Lord Lester, has said, the framework we have established—and strengthened with a package of amendments today—will ensure this.

As a non-departmental public body, the commission will be required to operate within a well-established accountability framework. Guidance issued by the Cabinet Office is clear on this point. While NDPBs operate independently of Government, Ministers remain accountable to Parliament for public money spent by that body. The chief executive of the commission, as is the practice with NDPBs, is the accounting officer, and he or she will be required to prepare a statement of account each year, and provide this to the Comptroller and Auditor-General. In this way the commission will be under the scrutiny of the National Audit Office and the parliamentary Public Accounts Committee. In addition, it will be required to draw up and publish a strategic plan setting out its proposed activities clearly. This will be subject to consultation, and will be informed by the views of stakeholders.

From the amendments agreed to earlier today on the matters relating to the independence of the commission, we will now require the commission to provide a copy of its plan to the Secretary of State in order to lay before Parliament. We have listened carefully to the committee debates in this place about the new commission's independence, and I believe we have responded positively to these concerns. We have taken measures to strengthen many aspects of the commission, such as its appointments and funding—for example, we have dealt with the direction-making powers of the Secretary of State—so that we improve the commitment to independence.

I am sure that the noble Lord, Lord Lester of Herne Hill, is suitably flattered—deservedly so—by the plagiarism done by the noble Baroness, Lady Miller of Hendon. As he knows, the amendment draws on the provisions of his Private Member's Bill of 2003. I hope, therefore, that the noble Baroness will be completely satisfied, now that the noble Lord, Lord Lester of Herne Hill, is satisfied with the provisions that have been made.

I sympathise completely with the intention behind the noble Baroness's amendment. I hope that I have made it clear that it is not in any way to frustrate her purpose but because we have already delivered her purpose that we resist the amendments. I hope that, in the light of what I have said, the noble Baroness will feel reassured and will withdraw her amendment with a spring in her step.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, with a spring in my step? I can do more than thank the noble and learned Lord the Lord Chancellor and, if I may, the noble Lord, Lord Lester of Herne Hill, for his helpful comments. With the same spring in my step, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 41:

Page 4, line 29, at end insert—

"(3) In promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons.

(4) In this Part "disabled person" means a person who—

(a) is a disabled person within the meaning of the Disability Discrimination Act 1995 (c. 50), or

(b) has been a disabled person within that meaning (whether or not at a time when that Act had effect)."

On Question, amendment agreed to.

Clause 9 [Human rights]:

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

moved Amendment No. 42:

Page 4, line 37, at end insert—

"( ) In determining what action to take in pursuance of children's human rights, the Commission must have particular regard to the importance of the Convention on the Rights of the Child."

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, Clause 9(3) rightly requires the commission to have particular regard to the European Convention on Human Rights, but that treaty was not drafted with children in mind. Even within the confines of civil and political rights, the Convention on the Rights of the Child is much broader. It includes, for example, children's right to have their views given due weight in Article 12; disabled children's right to active participation in the community in Article 23; children's right to appropriate information in Article 17; and, even more crucial, children's right to protection from all forms of violence in Article 19. Incidentally, I note that the name of the noble Baroness, Lady Massey of Darwen, has been inadvertently left off the amendment, and I regret that.

Those supporting the amendment believe that there is a special case for including by name the Convention on the Rights of the Child. There is no more ratified human rights treaty in the world, as, I am sure, your Lordships will agree. No fewer than 192 states have ratified it and, in so doing, have agreed to implement fully all the rights of all children. The convention gives children a comprehensive set of economic, social, cultural, civil and political rights.

Human rights bodies, including the European Court of Human Rights and the parliamentary Joint Committee on Human Rights, use the convention as their benchmark for determining children's human rights issues. Domestic courts increasingly refer to the convention when considering matters affecting children. As the noble Baroness, Lady Massey of Darwen, would have said—she sends her apologies for not being able to be with us this afternoon—the convention's clear guidance would be invaluable, particularly at a time of so much change in children's services in this country. I should also add that the Local Government Information Unit also supports that approach. It says:

"We believe that there is a risk that the human rights of children will not be fully addressed in the activities of the new commission unless specifically referred to in the statutory framework".

The Committee on the Rights of the Child, the international treaty-monitoring body for the convention, strongly urges that legislation refer explicitly to the convention, even when a broadly based human rights body serves children.

Your Lordships will remember that last year, during debates on Part 1 of the Children Act 2004, the House made strenuous efforts to create a rights-based Children's Commissioner for England, for England's 11 million children. That was to be in line with the rest of the UK and Europe. Although, I am glad to say, the legislation was improved considerably as it passed through both Houses, sadly it remains "rights-light" and second class in that respect. While commissioners in Wales, Northern Ireland and Scotland must promote and protect children's rights, the general function of England's commissioner is narrowly defined as being,

"to promote awareness of the views and interests of children".

Noble Lords will understand, therefore, that children in England especially, but not exclusively, very much need the new commission to promote and protect their human rights.

Self-evidently, babies and children are uniquely vulnerable to having their human rights violated. As the Joint Committee on Human Rights said in its report of May 2003, making the case for a rights-based children's commissioner:

"Children are vulnerable to exploitation and oppression in ways that adults are not".

Can any of the exiting equality bodies confidently claim that they fully serve the needs and interests of children, or that children are included in the organisation's priority setting and decision making? With the commission we have a new opportunity to weave children's issues throughout the fabric of the organisation.

This amendment is essential. We must ensure, first, that children are central to the commission, not an add-on, and, secondly, that the commission will take a broad approach to children's human rights, having regard to all the articles of the Convention on the Rights of the Child, as well as the general comments and concluding observations of the Committee on the Rights of the Child. It is to the Convention on the Rights of the Child that children's rights advocates look to transform children's lives. I hope that the Minister will agree that we can and should ensure that that is achieved by the explicit inclusion of the convention in the Bill. I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills 5:15 pm, 19th October 2005

My Lords, I have added my name to this amendment and support warmly the words of the noble Baroness, Lady Howe of Idlicote. For me there are four principal reasons why the Convention on the Rights of the Child must be referred to by name in the legislation establishing the new commission.

First, the convention is the world's most widely embraced human rights instrument, according to Kofi Annan—he should know. Somalia and the US are the only two eligible countries that have not yet ratified it, as the noble Baroness, Lady Crawley, reminded us at Question Time only today. In 2002, at the second world summit for children, the importance of the convention in transforming children's lives was reasserted by some 180 nations, including the United Kingdom. The convention sets the standard for a good childhood. It is the document for promoting and protecting children's human rights.

Secondly, the convention is probably the most comprehensive treaty of all, encompassing children's economic, social and cultural rights, as well as their civil and political rights. There is currently no equivalent treaty for any other sector of the population.

Thirdly, children are uniquely dependent and vulnerable, and easy to ignore. Having the convention written into the legislation will be a constant reminder that the new commission must work for children and their rights. The commission will need to consider fully children's needs in all its planning and priority setting, and children, just like adult stakeholders, will need to be consulted on and involved in the governance of the new institution. Without that one reference to children, I very much fear that they will be left out in the cold.

In November 2002, the Committee on the Rights of the Child, the international treaty monitoring body for the convention, issued standards for national independent human rights institutions for children. It said:

"While adults and children alike need independent national human rights institutions to protect their human rights, additional justifications exist for ensuring that children's human rights are given special attention".

The committee urges the creation of specialist, rights-based commissioners for children or an identifiable commissioner or children's rights division within a broad-based human rights bodies.

It is in the light of that statement that I turn to my fourth reason. Children in England do not have a rights-based children's commissioner, as the noble Baroness, Lady Howe, has just reminded us. Despite our best efforts in this House, Part 1 of the Children Act 2004 left the other House with five references to children's rights removed. The legislation says that the commissioner must have regard to the convention, as does the legislation for the other three UK commissioners. But the Government have always been very clear. The commissioner is not, and never was meant to be, an independent human rights institution for children. When the appointment of Professor Al Aynsley-Green was announced on 2 March, the press release did not once mention rights or the convention. The Secretary of State, Ruth Kelly, declared,

"[This] appointment will strengthen the voice of children and young people, giving them their very own representative to take forward the matters close to their hearts".

There was not a single mention of rights.

So it is to this new commission that we must look for children's human rights to be promoted and protected. But we cannot leave that to chance or good will; if Parliament wants children to be served by this body, we must ensure that the legislation says so.

Photo of Baroness Warnock Baroness Warnock Crossbench

My Lords, I strongly support this amendment. Children have needs which are peculiar to children. It is on the needs of children that their rights should be based, as it is on the needs of human beings in general that their rights are based. Children's needs are not different, but they have extra needs that adults do not have. It is extremely easy to say that there is no reason to mention children's rights in this Bill because human rights are at the centre of it. That is not enough. I agree with everything that has been said. Particular reference to the convention is really essential to give this Bill the teeth, which, unfortunately, the commissioner has not been allotted. Children will suffer by being marginalised unless the convention is mentioned here.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, I think that this amendment does have merits, for this reason. If we look at Clause 9(4), we see that the commission is directed to take account of "any relevant human rights" in relation to equality and diversity. It is directed to take account of "any relevant human rights" in relation to disability and in relation to communities. Is it not therefore odd that the commission must take account of children's rights in relation to equality and diversity, in relation to disability and in relation to communities, but not in relation to children themselves? It seems to me that there is a gap in the drafting of the Bill. I am sure that my noble friend will be able to employ her wordsmiths to put that right.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, it is my understanding that when Clause 9(2), for example, refers to "other human rights"—that is to say, other human rights than the convention rights—by that is meant "other human rights". And other human rights are all the rights that are contained in all of the international human rights treaties by which the United Kingdom is bound. That includes the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against Torture. Therefore, although I entirely sympathise with the aims of those supporting the amendment, I believe that the fears expressed are not real in practice because the commission will have to have regard to all of the rights in the Rights of the Child Convention and in the other human rights conventions as well.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very grateful to noble Lords who have spoken. I have to say that I shall ignore the notes that I have got in front of me because I want to say something slightly different. Noble Lords know how much I loath the idea of starting a list in any way, shape or form. I am very mindful of what the noble Lord, Lord Lester, said about "other human rights", which incorporates the UN Convention on the Rights of the Child and many others to which we have been party; for example, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture, the International Covenant on Civil and Political Rights, and so on. There are a number of them and I promise noble Lords that if we include one, there will be an amendment at the next stage and the one after to add others. If we include a list, that also means that when we sign new conventions, as I hope we will, the Bill will not cover them properly. So I am not inclined to go down the route of starting a list.

However, I know that the noble Baronesses, Lady Howe and Lady Walmsley, and my noble friend Lady Whitaker feel passionately about the issue. I had a sense of déjà vu at some points but, as the noble Baroness, Lady Walmsley, knows, I am known for saying something slightly different from what people think that I am going to say. A genuine issue has been raised here which I want to go away and think about. It concerns ensuring that children get involved with the commission in the right way. I think that that is what is the noble Baroness, Lady Howe, seeks to do. At present, the noble Baronesses remain unconvinced that we will ensure that. I have no idea how to do that and I am not even sure that it is right to do it in legislation. Although I do not accept the amendment, I commit, between now and Third Reading, both to talk to the noble Baronesses and my noble friend and to ask our officials to think about how to ensure that children are not forgotten, without setting up either a silo or a separate strand of work and recognising that some of the issues that the commission will deal with will concern both adults and children and some will not be relevant to children. However, the point has been well made and I hope that, on that basis, the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I thank all noble Lords who have taken part in the debate either supporting my amendment or pointing out why it is unnecessary. In particular, I thank the Minister for what she said about the possibility of thinking of the way in which children will figure more significantly. As she will understand, I am not entirely happy. I would much rather include the convention in the Bill, but I am grateful for the extra thought that she has undertaken to give to the matter between now and Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 43 to 44:

Page 5, line 4, leave out ", 10"

Page 5, line 7, leave out ", 10"

On Question, amendments agreed to.

Clause 10 [Disability]:

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, I pause before calling Amendment No. 46 because I must advise the House that if it is carried, I shall not be able to call Amendment No. 47 because of pre-emption.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 46:

Page 5, leave out lines 26 to 35 and insert—

"(a) promote understanding of the importance of good relations—

(i) between members of different groups, and

(ii) between members of groups and others,

(b) encourage good practice in relation to relations—

(i) between members of different groups, and

(ii) between members of groups and others,

(c) work towards the elimination of prejudice against, hatred of and hostility towards members of groups, and

(d) work towards enabling members of groups to participate in society."

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 48 to 50:

Page 5, line 36, leave out "community" and insert "group"

Page 5, line 36, leave out from "persons" to "who" in line 37.

Page 5, line 39, at end insert—

"(aa) disability,"

On Question, amendments agreed to.

[Amendments Nos. 51 and 52 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 53 to 58:

Page 6, line 3, leave out "community" and insert "group"

Page 6, line 4, leave out "sub-group or sub-class" and insert "smaller group or smaller class"

Page 6, line 5, leave out "community" and insert "group"

Page 6, line 6, leave out "community" and insert "group"

Page 6, line 10, leave out "communities" and insert "groups"

Page 6, line 11, at end insert—

"(4A) The Commission may, in taking action in pursuance of subsection (1) in respect of groups defined by reference to disability and others, promote or encourage the favourable treatment of disabled persons."

On Question, amendments agreed to.

Clause 12 [Monitoring the law]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 60:

Page 7, line 3, leave out "creating" and insert "encouraging and supporting the development of"

On Question, amendment agreed to.

Clause 15 [Codes of practice]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 61:

Page 8, line 32, at end insert "if—

(a) the matter is not listed in subsection (1), but

(b) the Secretary of State expects to add it by order under section 16(5)."

On Question, amendment agreed to.

Clause 17 [Inquiries]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 62 to 65:

Page 9, line 31, leave out from beginning to "conduct" and insert "may"

Page 9, line 32, leave out "specified"

Page 9, line 33, leave out ", 10"

Page 9, line 33, leave out from "11," to end of line 35.

On Question, amendments agreed to.

Clause 20 [Disability]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:30 pm, 19th October 2005

moved Amendments Nos. 67 to 69:

Page 11, line 7, leave out "communities" and insert "groups"

Page 11, line 9, leave out "communities" and insert "groups"

Page 11, line 11, leave out "communities" and insert "groups"

On Question, amendments agreed to.

Clause 22 [Investigations]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 70 to 73:

Page 11, line 19, leave out subsection (2).

Page 11, line 22, leave out "(but this subsection is subject to subsection (2))"

Page 11, line 24, leave out subsection (4).

Page 11, line 26, leave out "or (4)"

On Question, amendments agreed to.

Clause 26 [Applications to court]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, noble Lords may recall that in Committee we had a clause stand part debate on this clause at the request of the noble Lords, Lord Lester and Lord Dholakia, and my noble friend Lady Lockwood. That debate helped to illuminate the complexities of the commission's power to tackle persistent discrimination. I am sure noble Lords would agree that the commission needs effective tools to tackle the harm that prolonged and serious discrimination can bring.

Noble Lords may recall the request from the noble Lord, Lord Lester, to,

"remove the barnacles from the existing system, meaning the requirement that there must have been an unlawful act notice or court or tribunal finding within the previous five years before the commission can apply to a court for an injunction. We agreed to take this away and consider it further.

I am pleased to inform noble Lords that these amendments achieve the intention of the noble Lord, Lord Lester—that is, they remove the barnacles. Quite simply, we are persuaded that there is a good case for extending the circumstances in which the commission may apply for an injunction to stop a person discriminating. We are proposing, through these amendments, that the commission can apply for an injunction where it considers that a person, unrestrained, is likely to commit an unlawful act. This would parallel the arrangements proposed in Clause 27 in respect of the enforcement powers of the commission to restrain unlawful advertising and instructions or pressure to discriminate.

The major advantage of these amendments is that they enable the commission to bring proceedings directly and immediately once there is sufficient evidence that, unless restrained, a person is likely to discriminate. While the current legislation requires that a person has already discriminated, Clause 26, as amended, will impose no such restriction. The power can be used against a person whom the commission thinks will discriminate, even though there is not an established track record in that regard.

But—this is very important and anticipates some of the issues that the noble Baronesses, Lady Miller and Lady O'Cathain, would wish to see expressed—the effect of the amendment is not to make the process of applying for an injunction any less rigorous. This is an evidence-based process, where only evidence of real substance will convince a court that an injunction is necessary to prevent an unlawful act. The commission would be very unwise to launch a case unless it had strong evidence on which to rely. If it were to do so, it would risk costs being awarded against it, as well as damaging its reputation.

Enabling the commission to apply directly to a court for an injunction without either the evidence of a court or tribunal finding or having conducted an investigation that led to an unlawful act notice in no way reduces the threshold for securing an injunction. These amendments create a streamlined approach, eliminating preliminary stages.

Having said that, the evidence test required by the courts will be rigorous. In practice, it is not likely to be used lightly and there will have to be strong evidence for the court to grant an injunction. A court would certainly take the record of the person into account in the consideration as to whether to grant an injunction.

These amendments provide the commission with a rigorous but flexible tool and I commend them to the House. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am extremely grateful to the Government for having been open-minded in removing completely unnecessary bureaucratic obstacles. I agree entirely with the way in which the Minister expressed the situation: this does not in any way lower the high threshold needed by the commission to obtain injunctive relief.

In my personal experience, the power has been rarely exercised in the past—partly because of the obscurity of the drafting, which has been removed. But where it has been used—and it is only used against a persistent discriminator; someone so obstinate and stupid that they continue to defy the law flagrantly—although there have been very few such cases, the threat of going to court is normally sufficient to lead to a prompt settlement and change of heart. So, in that sense, it will actually reduce rather than increase litigation.

I should add that one cannot please all the people all the time. The Equal Opportunities Commission would have been happy had it continued to have the option of going to an employment tribunal in order to obtain a finding of unlawful employment discrimination. It prefers employment tribunals to county and sheriff courts as appropriate places to deal with discrimination. I understand and sympathise with that view but it seems to me that that should be taken into account by the discrimination law review when it considers which is the best tribunal for dealing with discrimination cases. We wholeheartedly support the amendment.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, I, too, thank the Government for what they have done in these amendments. Perhaps I may add to what the noble Lord, Lord Lester, said in relation to courts as compared to tribunals. The reason the Equal Opportunities Commission would prefer tribunals still to be available is that tribunals are now very experienced in dealing with sex discrimination cases whereas the courts are less familiar with the whole legislation. Therefore, pro rata, cases are less likely to succeed in the courts than in the tribunals.

The EOC has suggested—I would welcome the Minister's comments—that to overcome this problem more training and awareness should be given to people in the courts in order to help familiarise them more with the provisions of the Sex Discrimination Acts.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, in response to that point, as the noble Lord, Lord Lester, said, the EOC's comments will be fed into the discrimination law review, when the whole question of training will be considered because the law review is looking in the round.

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 75:

Page 14, line 23, leave out "to whom this subsection applies"

On Question, amendment agreed to.

Clause 30 [Legal assistance]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 76:

Page 17, line 39, leave out from "while" to "but" and insert "they relate to a provision of the equality enactments,"

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, in moving Amendment No. 76, I shall speak also to government Amendments Nos. 77 to 81. Although there are several amendments, their effect is minor. This is in response to the 16th report of the Joint Committee on Human Rights.

Clause 30(5)(b) provides that the commission may only support cases for as long as a provision of the equality enactments remains in issue. However, Clause 30(6) provides a power by which the Lord Chancellor may make an order disapplying subsection (5)(b) in respect of cases which have ceased to relate to the equality enactments but which continue to relate to the Human Rights Act 1998. Such an order would, as I explained in Committee, be made in respect of all cases or a class of case rather than on an individual case-by-case basis.

In its 16th report in the last Session, the Joint Committee on Human Rights rightly raised a technical point on the drafting. At the moment, the power only covers cases which relied on both the equality enactments and Section 7(1) of the Human Rights Act 1998 from the outset. We accept the recommendation of the Joint Committee that this is unnecessarily restrictive as it would prevent the continued support of cases in which a matter relating to the convention rights within the meaning of the Human Rights Act had arisen in the course of the case. An example would be where a point was raised by the court of its own motion during the course of oral argument.

The amendment therefore removes this unintended restriction. It will be sufficient that the case has ceased to relate to a provision of the equality enactments but does relate wholly or partly to any of the convention rights, regardless of when exactly the convention point was first raised. It is a matter of detail, as I have indicated. Unless the order-making power is exercised, it will not affect the case support function of the commission and its effect even then would be felt only in very occasional cases. It is, however, a worthwhile change to be made, as the Joint Committee identified.

We have also taken the opportunity to simplify the drafting of the clause somewhat by standardising the wording used in different subsections. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, as a member of the Joint Committee on Human Rights, I should like to say how gratified we are with the amendments. I need to deal with one point, of which I have given notice. The noble Baroness is not a lawyer but she is better than any lawyer; she knows that I will raise it and that she will not have to answer it this afternoon. However, I need to raise it now because it has been raised by the Equality and Diversity Forum and by Justice, through Gay Moon, its legal officer. It is quite an important point.

The question is whether we need to amend Clause 30 and expand it to deal with cases where an Act of Parliament has a mismatch with European Community law. The Equality and Diversity Forum and Justice, through Gay Moon, believe that an amendment is necessary. I do not, but I should like to explain what I think is the position and then see whether the Government agree before Third Reading so that we can decide whether to table an amendment.

The Employment Protection (Consolidation) Act 1978 required that workers could receive employment benefits only if they worked for more than 16 hours a week. It is not an equality Act, it is an employment protection Act. That provision hit disproportionately at women. Therefore, the EOC, which I have the privilege of representing in the House of Lords, was able to bring a judicial review, reviewing the compatibility of the barrier in that Act with the EEC equality directive which says you cannot discriminate indirectly or directly against women. Meanwhile, Mrs Snodgrass, an individual victim, brings her case in the employment tribunal, claiming that she is entitled to the benefit and can knock away the bit of the employment protection legislation which says she must work for more than 16 hours a week.

The Equality and Diversity Forum is under the impression that because the Employment Protection (Consolidation) Act is not an equality enactment within the meaning of Clause 30(1)(a), the commission cannot help Mrs Snodgrass to bring her individual proceedings in that case. I think that it is mistaken; it is an important point because of the magical effect of the European Communities Act 1972: one has to interpret Clause 30 subject to directly effective Community rights and the legislation must be interpreted in accordance with the European principles and rules. That is why, under the aegis of the noble Baroness, Lady Lockwood, as she will remember, we were able to bring all those wonderful references to the European Court of Justice in individual cases with names such as Macarthys Ltd v. Smith and Worringham v. Lloyds Bank where we were knocking out provisions that were inconsistent with EC law. The EOC had its power to give assistance stretched by the European Communities Act to allow the EOC to back those individual cases.

Therefore, it seems to me unnecessary to amend Clause 30 because of the effect of the European Communities Act wherever it refers to a provision of the equality enactments—that includes the equality directives, the European directives. When it talks about legal proceedings, it must mean legal proceedings under domestic law, where relevant, read with European Community law.

I am sorry to tax the patience of the House with all this, but it is important because if that were not the case, there would be regression since it would mean that the new commission could not do exactly what the EOC has been doing ever since the noble Baroness, Lady Lockwood, became its first and distinguished chair. I am sure that that is not the Government's intention. More importantly, I think it is wrong as a matter of law.

This is a grave and weighty matter to which consideration needs to be given and on which letters need to be written before we decide on Third Reading. I am grateful for the patience of the House.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:45 pm, 19th October 2005

My Lords, let me respond to the interesting—it says here—point of the noble Lord, Lord Lester. I am sure it is interesting, although it is a technical point. As the noble Lord knows, we are aware that the EOC has supported cases that went beyond the Sex Discrimination Act and the Equal Pay Act to include matters that engaged European Community equality law and non-discrimination legislation. As the noble Lord said, the Law Lords interpreted Section 75 of the Sex Discrimination Act as extending to the provision of legal assistance to cases alleging that UK employment legislation was discriminatory against women in contravention of European Community law.

We will need to confirm with parliamentary counsel that the current drafting of the Bill will also allow the commission to provide legal assistance in cases where an individual seeks to bring a case that a UK non-equality statute is in breach of European equality legislation. We will indeed look at the matter carefully and make sure that we write to the noble Lord before Third Reading.

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 77 to 81:

Page 17, leave out line 41 and insert—

"(b) if the proceedings cease to relate to a provision of the equality enactments,"

Page 18, line 4, leave out "relied both on" and insert "related (wholly or partly) to"

Page 18, leave out lines 5 to 7.

Page 18, line 8, leave out "rely on" and insert "relate to"

Page 18, line 8, at end insert—

", and

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

On Question, amendments agreed to.

Photo of Lord Addington Lord Addington Spokesperson in the Lords (Sport), Culture, Media & Sport, Spokesperson in the Lords (Disability), Work & Pensions, Deputy Chief Whip, People With Disabilities, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 82:

Page 18, line 23, at end insert—

"(10) A legislative provision which requires insurance or an indemnity in respect of advice given in connection with a compromise contract or agreement shall not apply to advice provided by the Commission under this section."

Photo of Lord Addington Lord Addington Spokesperson in the Lords (Sport), Culture, Media & Sport, Spokesperson in the Lords (Disability), Work & Pensions, Deputy Chief Whip, People With Disabilities, Non-Departmental & Cross Departmental Responsibilities

My Lords, this amendment stands in the name of the noble Lord, Lord Carter, the noble Baroness, Lady Darcy de Knayth, and myself. It is one of those complicated matters where we mortals tread very gingerly through the lawyers. But I am advised that effectively the purpose of the amendment is to disapply the requirements in the equality enactments and other legislation which require all advisers, including those from the commission, to have professional indemnity insurance when advising on compromise agreements.

The amendment would simply remove the requirement that the commission needs indemnity insurance when its staff advise on compromise agreements as part of the legal support provided under Clause 30. The exemption to the amendment would apply, among others, to the relevant provisions on compromise agreements in the Disability Discrimination Act, the Sex Discrimination Act, the Race Relations Act, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion and Belief) Regulations 2003 and the Employment Rights Act. It also applies to the full range of other employment legislation, existing and forthcoming, since the commission can provide legal support for complainants in respect of the equality enactments and other matters.

I am grateful for the assistance of the Government in framing this legislation—I can safely say it would not be happening without their assistance. We should all be glad that we have lost many lines of the original amendment from which this is descended. I beg to move.

Photo of Baroness Darcy de Knayth Baroness Darcy de Knayth Crossbench

My Lords, I support the noble Lord, Lord Addington, who has made a very good case for the amendment. I believe that the Minister made some quite encouraging noises about it earlier, and I hope that she will be able to accept it or come back with something of her own.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, we undertook to give further consideration to the amendment moved originally by my noble friend Lord Carter. We have considered it further, talked to the stakeholders and believe that it is entirely sensible. I am delighted to accept the amendment.

On Question, amendment agreed to.

Clause 32 [Judicial review and legal proceedings]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 83:

Page 19, line 10, at end insert—

"(2A) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—

(a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate,

(b) the Commission may act only if there is or would be one or more victims of the unlawful act,

(c) section 7(3) and (4) of that Act shall not apply, and

(d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies); and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section."

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, in moving Amendment No. 83, I should also like to speak to Amendments Nos. 84, 85, 86 and 102, which are consequential upon it.

In Committee, my noble friend Lady Ashton undertook to the noble Lord, Lord Lester, that we would consider his amendment to Clause 32 to allow the commission to bring human rights judicial reviews in its name. Having had the advantage of discussing the issue with the noble Lord, Lord Lester, I am pleased to move this amendment which expands the powers of the commission in the way that he sought in Committee.

The commission already has the power to institute or intervene in legal proceedings relevant to its remit. However, Clause 32(3)(c) expressly provides that the victim test in the Human Rights Act still applies. This test, in Section 7(1) of that Act, provides that proceedings against a public authority for breach of a convention right may be brought only by a person who is—or would be—a victim of the alleged unlawful act. Therefore, the commission at present would not be able to bring human rights judicial reviews.

This group of amendments provides the commission with an express power to rely on the convention rights in judicial reviews that it has instituted—or in which it intervenes—and disapplies the victim test to that end. However, paragraph (b) of new subsection (2A) requires that the commission may act only if there is or would be one or more victims of the unlawful act—the effect being that there should still be a victim as before, but that the commission may bring the case. This amendment will therefore not create any new opportunities for litigation under the Human Rights Act, or permit purely hypothetical cases to be brought.

The amendment is not about making the commission a major litigating body in respect of human rights. Its role remains essentially promotional. Paragraph (d) of new subsection (2A) provides a further important restriction; that no award of damages may be made to the commission. As the noble Lord, Lord Lester, said in Committee, granting the commission a limited power such as this allows it to bring strategic cases to clarify important points of law. In many such cases, the facts of the case will be agreed—perhaps as a result of an inquiry—but the legal framework will be in dispute. It is more efficient and more cost effective for the commission to be able to seek a clear declaration on a point of law in such circumstances, instead of requiring a victim to bring a case in their own right and for the commission then to intervene.

Having listened to those who have been pressing for this power—including the noble Lord, Lord Lester, and indeed the Joint Committee on Human Rights—I hope that the commission will use it wisely and strategically to contribute to the continued development of the body of human rights jurisprudence produced by our domestic courts under the Human Rights Act. The case was made in Committee for this amendment, therefore, I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I should like to pay tribute to the noble and learned Lord the Lord Chancellor. I have already paid tribute to the noble Baroness, Lady Ashton, but the noble Lord the Lord Chancellor needs special tribute paid to him. He was willing to listen to the argument with an open mind. Having listened to it, he came to the conclusion that the Joint Committee on Human Rights was correct. What he has achieved is not a charter for litigation on human rights, all, but the same kind of approach as that used by the commission chaired by the noble Baroness, Lady Lockwood in tackling issues of law where individual victims were there, but did not need to be brought into the proceedings. The example that I am sure the noble Baroness will remember relates to sex discrimination in education. Birmingham, as with the Northern Ireland authorities, was effectively not providing girls with equal opportunities to boys in single-sex schools. There was no need for a 10-year-old girl to bring the case. The EOC was able to seek by way of judicial review a declaration that the law was being breached. As a result, the public authority knew where it was and therefore the need for individual litigation was discouraged.

The same will now happen on the human rights side, but it will in no sense alter the victim test where there are breaches of convention rights, nor will it involve any claim by the commission for damages or anything of that kind. Therefore, the Lord Chancellor directed himself admirably and we are all very grateful to him.

On Question, Amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendments Nos. 84 to 86:

Page 19, line 12, at end insert ", and"

Page 19, line 13, after "are" insert ", except as provided by subsection (2A),"

Page 19, line 15, leave out from "court," to end of line 17.

Clause 33 [Public sector duties: assessment]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 87:

Page 19, line 27, leave out subsection (2).

On Question, amendment agreed to.

Schedule 2 [Inquiries, Investigations and Assessments]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 89:

Page 68, line 27, at end insert—

"(a) may not require a person to provide information that he is prohibited from disclosing by virtue of an enactment,"

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the purpose of Amendments Nos. 89 and 98 is to address the position where there are potentially conflicting statutory provisions: on the one hand, the commission's ability to compel material, on penalty of criminal sanction, while on the other, the party who holds the information does so subject to a prohibition on its disclosure. These amendments will therefore put beyond doubt that the commission will not be able to compel information as part of an inquiry, investigation, assessment, or compliance notice process which the holder is prohibited from disclosing by another piece of legislation.

We think that this situation is most likely to arise in respect of public sector regulators. They obtain material as part of their own regulatory processes and are subject to statutory restrictions as to its further disclosure. This provision is intended to clarify that the person who receives a notice from the commission to produce material will not be required to comply with that notice to the extent that its disclosure to the commission would breach a statutory bar to disclosure to which it is subject. I beg to move.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendments Nos. 90 to 95:

Page 69, line 42, leave out "and"

Page 69, line 48, at end insert ", and

"(d) the tribunal shall determine proceedings under this paragraph by considering the opinion of the person who gave the notice under sub-paragraph (1) above in accordance with the principles that would be applied by a court on an application for judicial review of the giving of the notice."

Page 70, line 1, after "from" insert "or relating to"

Page 70, leave out lines 11 to 14.

Page 70, line 16, leave out "prepare" and insert "publish"

Page 70, line 18, leave out sub-paragraphs (2) and (3).

On Question, amendments agreed to.

Clause 34 [Public sector duties: compliance notice]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, in moving Amendment No. 96 I shall also speak to Amendments Nos. 97, 99 and 100. The purpose behind these four amendments is to refine the arrangements for enforcement of the public sector duties so that they are more effective. The general and specific duties create very different sets of obligations and we need a more tailored enforcement arrangement for each.

In summary, the arrangements that we are proposing are that the commission will be required to conduct an assessment before issuing a compliance notice in respect of a breach of the general duty. There will be no such requirement to conduct an assessment in respect of a breach of a specific duty. Applications to enforce a compliance notice will be to the High Court or Court of Session in respect of a breach of a general duty and to the County Court or Court of Session for a breach of a specific duty. A compliance notice can require information of not only the steps taken to rectify the breach but steps proposed. The commission will also be required to specify in a compliance notice the period of time before which it will not apply to a court to require a person to comply with a compliance notice. The Bill will reflect existing legislation and provide that the sole mechanism for enforcing a specific duty is by means of a compliance notice. It excludes any other party seeking to enforce a breach of a specific duty by any means. I beg to move.

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 97 to 100:

Page 20, line 10, at end insert—

"(3A) The Commission may not give a notice under this section in respect of a duty under section 76A of the Sex Discrimination Act 1975, section 71(1) of the Race Relations Act 1976 or section 49A of the Disability Discrimination Act 1995 unless—

(a) the Commission has carried out an assessment under section 33 above, and

(b) the notice relates to the results of the assessment."

Page 20, line 12, after "information" insert—

"(a) that he is prohibited from disclosing by virtue of an enactment, or"

Page 20, line 21, leave out "a county court (in England and Wales) or to the sheriff (in Scotland)" and insert "the court"

Page 20, line 22, at end insert—

"(8) In subsection (7) "the court" means—

(a) where the notice related to a duty under section 76A of the Sex Discrimination Act 1975, section 71(1) of the Race Relations Act 1976 or section 49A of the Disability Discrimination Act 1995, the High Court (in England and Wales) or (in Scotland) the Court of Session, and

(b) in any other case, a county court (in England and Wales) or the sheriff (in Scotland).

(9) A notice under this section shall specify a time before which the Commission may not make an application under subsection (7) in respect of the notice.

(10) Legal proceedings in relation to a duty by virtue of section 76B or 76C of the Sex Discrimination Act 1975, section 71(2) of the Race Relations Act 1976 or section 49D of the Disability Discrimination Act 1995—

(a) may be brought by the Commission in accordance with subsection (7) above, and

(b) may not be brought in any other way."

On Question, amendments agreed to.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 101:

After Clause 34, insert the following new clause—

"LEGAL ASSISTANCE FOR PERSONS OR ORGANISATIONS BEING INVESTIGATED ETC. BY THE COMMISSION

(1) This section applies where the Commission is—

(a) conducting an investigation under section 22, or

(b) issuing an unlawful act notice under section 23, or

(c) making an application to a court under section 24(6), or

(d) making an application to a court under section 26, or

(e) bringing proceedings under section 27, or

(f) giving legal assistance to an individual under section 30, or

(g) bringing an application for judicial review under section 32, or

(h) issuing a compliance notice, or making an application to a court, under section 34.

(2) In a case to which this section applies, where the defendant in a court or tribunal case or the subject of the notice or investigation is—

(a) an individual, or

(b) a charity, or

(c) an organisation of the type mentioned in section 59 of this Act, the individual, charity or organisation shall be granted legal assistance paid for out of central funds to enable them to respond to the case, the notice or the investigation.

(3) The Lord Chancellor shall make regulations providing for payment out of central funds for the provision of such legal assistance.

(4) The sections listed in subsection (1) of this section shall not come into force until the regulations mentioned in subsection (3) have been laid before and approved by resolution of each House of Parliament."

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, the problem here relates to the absence of checks and balances against the awesome power of the commission. I believe that the Equality Bill introduced in January 2003 by the noble Lord, Lord Lester, contained more checks and balances on the commission than this one. What restraint is there when this powerful commission pursues, for example, a small charity with limited resources?

On 11 July at Hansard Column 949, my noble friend Lady Miller drew attention to the fact that the enormous financial and legal resources of the commission could be ranged on one side of a legal dispute leaving a defendant who had limited financial resources at a considerable disadvantage. My noble friend pointed out that that would create enormous inequality. I share those concerns. In particular, I am worried about how that will affect organisations that promote religion. For example, there are organisations such as Alcoholics Anonymous, which as part of its activities—the eight point plan—pray to God for help. If an organisation of that kind wished to recruit a member of staff and did not want to employ an atheist, an atheist could make an allegation that the organisation had breached the Employment Equality (Religion or Belief) Regulations 2003. The commission could decide to back the legal action as a test case to establish the limits of the defences of religion or belief organisations found in the regulations.

The atheist complainant being backed by the commission will have access to the best legal advice and enormous financial and personnel resources. The defending organisation, however, would almost certainly have to issue an appeal for funds to its band of supporters to pay for legal advice. That would surely be unfair.

My noble friend Lady Miller moved an amendment in Committee to remedy the situation by giving the commission discretion to provide legal assistance to those on the receiving end of the enforcement proceedings. That did not find favour with the Government, who did not want the commission,

"trying to face in both directions at the same time".—[Hansard, 11/7/05; col. 953.]

My amendment is not open to that charge. It does not invite the commission to fund the defence; instead, it requires the Lord Chancellor to issue regulations creating a mechanism for payment out of central funds. It is essential for two reasons that we take that step: first, to prevent the commission from steamrollering smaller organisations to ensure that its view of the law becomes enshrined as precedent and, secondly, for the sake of justice. Neil Addison, a barrister, has provided advice to the Christian Institute on this matter, and says:

"Under clause 30 the Commission is allowed to give financial assistance (in essence a form of legal aid) to persons bringing legal proceedings either for Discrimination or under the Human Rights Act. If the assisted person wins their case then the Commission can recover these legal costs (clause 31). However there is no provision in the Act, or in existing legal aid legislation, for individuals or organisations to be given legal aid if they are being investigated by the Commission or are being sued with the backing of the Commission. Nor does there appear to be any provision for a person or an organisation to recover their legal costs in defending themselves from an investigation or in fighting a legal claim backed by the Commission. I consider that this omission could well be in breach of the Human Rights Act".

Mr Addison goes on to say:

"In the case of Steel and Morris v UK . . . (the McLibel case) the European Court of Human Rights accepted that legal aid should be granted in Civil Cases where the resources between the parties were significantly different and where issues involving Convention Rights are involved."

I believe that there is clearly a case to answer.

This amendment caters not only for defence against commission-backed legal action, but also for defence against other enforcement actions which it may take. In addition, it would benefit individuals as well as charities. It particularly focuses on the religion or belief organisations, which are covered in Clause 59. This would entitle Alcoholics Anonymous, in my example, to apply for legal assistance to ensure it responds properly and fully to the case backed by the commission. My amendment does not say anything about means-testing; it does not establish the hurdles which must be passed before legal support can be obtained. That is for the noble and learned Lord the Lord Chancellor. However, what my amendment does establish is the principle that, in order to avoid great inequality between the parties as a result of the involvement of the commission, aid can be given.

When we discussed this issue in Committee, it was suggested that there was no need for such a provision because the commission would never, ever back a legal action that was not thoroughly worthy. Sadly, in the legal world, we know of many miscarriages of justice where mistakes have been made. We are all human. Are we to believe that unlike the police and the CPS, the commission is to be staffed by angels who will never make mistakes, and never allow partiality to affect their judgment? It was also asserted that none of the existing commissions has ever backed an inappropriate legal action. I am afraid that that is not strictly true.

I know of at least one case to support my assertion—the case of Bill Parry v The Vine Christian Centre, which I raised repeatedly during our long discussions on the passage of the Gender Recognition Bill. The importance of that case is that the Equal Opportunities Commission supported the protagonist. The case was thrown out by the court at the first opportunity. It was recognised as a bad case, yet the commission supported it. I cannot believe that that is the only example. Of course, I do not say that all cases supported by the commission would be like that—in fact, there would probably be very few—but we must have some mechanism for ensuring that unworthy cases do not succeed simply because of the inequality of resources between the parties. If Mr Addison is right, failure to do so may even result in a breach of the European Convention on Human Rights. I beg to move.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop 6:00 pm, 19th October 2005

My Lords, I have some sympathy with the concerns expressed in the noble Baroness's amendment. Here, and in one or two further issues that are to be raised, we are entering the world of civil society organisations and in particular, as the noble Baroness pointed out, of small charities, of which people in my position are frequently patrons and seek to be supporters. Very often not only are such organisations working on minimum funding arrangements but their trustees are local people who give their time voluntarily. We need to get on the inside of the way in which those organisations field these issues; we shall come to subsequent issues in a minute, but they need some comfort on these matters. Whether or not the amendment achieves that appropriately, we need to hear the concern that lies behind it, because I know bodies of trustees of small organisations who will be anxious.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I am quite sure that the Minister will not be surprised when I say that I support my noble friend, because we had similar concerns in Committee. The Minister at that stage pointed out that there was a defect in the idea that the respondent should be funded by legal aid. My noble friend's amendment seeks to remedy that, and she has come up with a better amendment than mine was. Funnily enough, although I do not think I mentioned the matter in Committee, we also had concerns about the possible breach of the convention on human rights. At the end of the day, if the respondent is not in a position to defend his case properly, he might be in some difficulty. I shall be very interested to hear what the Minister says in response.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, this gives rise to a difficult and familiar problem that goes well beyond the scope of the Bill—that is, what one does to help the impecunious respondent or defendant in civil proceedings who is not poor enough to receive legal aid, or when there is no legal aid because the case is an employment tribunal. In my personal experience, I can recall only one case in which a very small business may have been unjustly treated because the case had to go to Luxembourg before a knotty point of law could be decided—and the business was a very small one indeed. So I understand the problem and am sympathetic to it.

Of course, equality commissions often back cases that fail. The EOC, which is the one that I know best, does not have much money for legal proceedings and is extremely stringent about how funds are provided. I see the noble Baroness, Lady Turner, nodding; she has direct experience of that, too. So they are not some great Goliath against a David or Davida; they have very limited funds.

There are mechanisms in place to deal partly with the problem. One involves cost rules, if the case is in an ordinary court. Even in an employment tribunal, if a party behaves unreasonably it can be punished in costs, which is a very useful disincentive to irresponsible behaviour. If a case is vexatious or abusive, a tribunal court will deal with it. But in the last resort, as I am sure will be confirmed, legal assistance can be provided where there is a lack of equality of arms and where not to provide it would result in a violation of fairness under common law or under the convention. The problem is that, if we were to pass this amendment, we would build a conflict of interest into the same body that is funding the weak claimant. It would have to fund both sides. That would be a very difficult thing to imagine.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am grateful to the noble Baroness, Lady O'Cathain, for raising this matter. This is an area about which the noble Baronesses, Lady O'Cathain and Lady Miller of Hendon, are genuinely concerned. We need to have a further conversation about this matter as I was unable to have the length of conversation with the noble Baroness that I had planned. That was entirely my fault.

The noble Lord, Lord Lester, gave some of the answers that I would give about opportunities. However, I want to make two or three general points as a precursor to the conversation that we need to have. First, I believe we all agree that the primary approach of the commission is to promote and support good practice. Therefore, we are talking about a situation that will arise only rarely when it resorts to its regulatory powers—and when attempts to secure improvement through providing advice and guidance have failed. It will support cases brought by individuals only in a very few cases. Therefore, I do not believe that in general terms we have to fear arbitrary, unreasonable or disproportionate action. The commission's powers are modelled on those of the existing commissions, who have used them sparingly and strategically. We expect the new commission to do no less.

I understand the concerns about the impact on a faith or other body that regulatory action by the commission might bring. While it is possible, of course, that individuals, charities and religious or belief organisations could become subject to discrimination proceedings, we need to remember, as the noble Lord, Lord Lester, said, that the great majority of cases are brought before employment tribunals where the procedures are simple and straightforward so that formal representation is not required. Procedures have recently been improved further. For this reason legal aid is not available in employment tribunals in England and Wales for either side. Should an individual faith leader face discrimination proceedings in the county court, he or she would be eligible to apply for legal aid, subject to the standard means and merits test that exists for accessing some public support. It is, of course, possible for faith bodies, who might face proceedings as employers, to take out insurance against the costs of legal representation and damages against them in the courts.

The commission will have the power to compel evidence in an investigation, and I recognise that this could be onerous on an individual or small organisation. However, there is a safeguard to check the powers of the commission and to ensure that they are not used irresponsibly. Schedule 2 enables that a person served a notice to provide evidence may apply to a court to have the notice cancelled on the grounds that it is unnecessary or unreasonable. The Bill provides for representations to be made and for the commission to consider representations made in relation to an inquiry, investigation or assessment. No party is required to make such representations, nor need they be made by a lawyer.

A person subject to an unlawful act notice may or may not have a requirement attached for an action plan. Such a person would be entitled to apply to a court to have the notice cancelled, but is not required to do so. A person applying to a court to have a notice cancelled would be entitled to request an award for costs if they won the case.

If the commission were to apply to a court for an injunction under Clauses 26 or 27 or bring judicial review proceedings, it would be incumbent on it to make the case. The respondent would, however, be entitled to make their case to the court and although they could represent themselves, it is reasonable to assume that they would instruct legal representatives. However, were they to be fighting an unsuccessful application by the commission for an injunction, as the noble Lord, Lord Lester, said, there is a likelihood of the court awarding costs.

I have deliberately tried to set out those points very briefly but in summary it is not the intention in setting up the commission that it will use its powers to pick on individuals, charities, religious or belief organisations or, indeed, small businesses. As a public body the commission is obliged to act reasonably and can be challenged in the courts if it does not. I believe that public support for the commission would soon disappear if it was considered to behave oppressively or unfairly. As I said, its enforcement powers are closely modelled on those of the existing commissions. There are procedures in place in the courts and employment tribunals to ensure that completely unfounded or vexatious cases are thrown out. Tribunals can award costs against a litigant in some circumstances. In county courts or the High Court costs are frequently awarded to the subject of unsuccessful proceedings.

The Government could not support setting up a new source of legal aid funding for the need that we are discussing, not least because inevitably it would be given at the expense of other needs. I doubt that there would be widespread agreement that that would be justified. However, I undertake to continue discussing the matter. The noble Baroness, Lady O'Cathain, deserves the attention of officials who can explain in greater detail precisely how the provision would work. She can then make a decision whether to pursue the matter further.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 6:15 pm, 19th October 2005

My Lords, I thank all noble Lords who have spoken in this debate. I am very grateful to the right reverend Prelate for explaining the whole matter a lot better than I believe I did. I am also very grateful to the noble Lord, Lord Lester. He referred to the Equal Opportunities Commission and said that it did not have much money. However, we should not forget that the commission which is being set up will have a lot of money. I am also extremely grateful to my noble friend who supported me so ably. Noble Lords who intervened in the debate will realise that I am most grateful to the Minister. I am particularly grateful to her for offering to discuss the matter further. I have no doubt that that will help.

The Minister made three points. First, she referred to the commission's role of promoting good practice. That is fine in general terms but we are talking about the exceptional case where something goes wrong. The implications of that for the commission are not that bad; it might not even suffer reputational damage. However, the implications for a small organisation could be catastrophic. We must pursue that matter further.

Secondly, the Minister referred to faith bodies taking out insurance. I am sure that not a single Member of your Lordships' House does not realise how expensive insurance is now. I do not believe that small organisations such as those mentioned by the right reverend Prelate could afford that. That brings me neatly to the third point; namely, that you would have to apply to a court. A small organisation would have to obtain legal advice and, because of its memorandums and articles of association or whatever, would probably have to consult a lawyer down the road whom it knew and thought might be able to help. However, that is not a fair situation; it is rather a David and Goliath situation. Therefore, I am still concerned but my concerns have been allayed, certainly for the time being, by the generous response on the part of the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Unlawful]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 102:

Page 20, line 42, after "Part" insert "(except section 32(2A))"

On Question, amendment agreed to.

Clause 37 [General]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendments Nos. 103 to 104:

Page 21, line 15, leave out "communities" and insert "groups"

Page 21, line 18, leave out "10" and insert "8"

On Question, amendments agreed to.

[Amendment No. 105 not moved.]

Clause 41 [Orders and regulations]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, these amendments respond to a recommendation of the Delegated Powers and Regulatory Reform Committee. I indicated our intention to do this at Second Reading. Parliament is involved in the procedure for bringing into force the commission's codes of practice. This involves laying the draft before Parliament and allowing for a resolution of either House within 40 days that it should not proceed. This follows the existing provisions in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.

However, there is no standard procedure for revoking a code of practice. As the Bill currently stands, the Secretary of State would revoke a code by order at the request of the commission without any parliamentary procedure.

The Delegated Powers and Regulatory Reform Committee recommended that the same considerations for making a code should apply to revoking a code; that is to say, Parliament should be involved. I am happy to accept that recommendation. Consequently, we have brought forward this amendment and Amendment No. 109. The effect of these amendments is to require that revocation of codes made by the new commission, or those in existence and made by the existing equality commissions, will be subject to a negative resolution parliamentary procedure. I beg to move.

On Question, amendment agreed to.

Clause 43 [Transitional: the Commission]:

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

My Lords, in calling Amendment No. 107, I have to point out to your Lordships that if this amendment is agreed to, I cannot call Amendment No. 108.

[Amendment No. 107 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 108:

Page 25, line 9, leave out "10" and insert "11, in so far as it relates to disability"

On Question, amendment agreed to.

Clause 44 [Transitional: functions of the dissolved Commissions]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

moved Amendment No. 109:

Page 25, line 35, at end insert—

"(5) An order under subsection (3)(a) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

On Question, amendment agreed to.

Clause 45 [Religion and belief]:

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, in moving Amendment No. 110, I shall speak also to Amendment No. 168. They make identical amendments to Clauses 45 and 78 by giving a closer definition of "belief". As drafted, the Bill says:

"'belief' means any religious or philosophical belief".

The word "or" indicates that two separate things are being protected—a religious belief and a philosophical belief. The amendment makes it clear that the philosophical belief must be similar to a religious one and not be any old concept, even though "concept" is part of the heading of the group of clauses.

The Oxford English Dictionary defines a philosophy as:

"a theory or attitude that guides one's behaviour".

As can be seen, while all religions are based on a philosophy, not all philosophies are religious in nature. The noble and right reverend Lord, Lord Carey, was reported in the Times as speaking about religious philosophies, clearly indicating that there are also non-religious ones. A diligent search through my reference library enabled me to find over 30 different philosophies before I gave up looking. Interestingly enough, most of them had the suffix "ism". Platonism, stoicism, hedonism, Hegelianism, existentialism, to name but a few, are the slightly more pronounceable ones. I looked up Epicureanism, and it sounds quite interesting. Marxism is a philosophy—so I dare say is Thatcherism, although I know which of the two I prefer. So is—very sinisterly—Nazism, which is based on the philosophy clearly set out in Hitler's book Mein Kampf. Hitler's henchman, Joseph Goebbels, gave the game away in 1933 when he said:

"What matters is not so much what we believe; only that we believe".

For the purposes of the Bill, which imposes restrictions to a certain extent on freedom of thought and speech, and the perfectly proper protection of people against harassment on the grounds of their religion, what we believe does matter. Why should anyone not be allowed to refuse to employ someone who is a neo-Nazi or refuse to let a lecture hall to those who want to use it to preach another "ism"—racism? There is another aspect where protection of the right to oppose a particular philosophy is essential. I refer to the mind-bending cults such as the Moonies and Scientology, whose gullible recruits sometimes need rescuing from their own folly.

The noble Lord, Lord Lester, mentioned to the Committee that he is a,

"passionate, disbelieving Jewish agnostic".—[Hansard, 13/7/05; col. 1109.]

His agnosticism—another "ism"—is similar to a religious philosophy and is fully protected by the Bill, except perhaps if he decides on a career change and wishes to become a Rabbi.

In the Employment Equality (Religion or Belief) Regulations 2003, the Government defined "religion or belief" as:

"Any religion, religious belief, or other similar philosophical belief".

The Government had no difficulty in confining the philosophical belief to one that is similar to religion and not including any other type of theory. The noble Baroness, Lady Scotland, tried to draw a difference between the definition in the regulations and that proposed in the Bill. It is with some hesitancy that I disagree with a distinguished lawyer such as the noble Baroness, but with absolutely no disrespect, I feel that she was seeking to find a distinction without a difference. She told your Lordships that in drafting the Bill:

"It was felt that the word 'similar' added nothing and was, therefore, redundant".—[Hansard, 13/7/05; col. 1109.]

The fact is that one little word of just seven letters does add something. It ensures that bona fide religious beliefs are protected, not some weird, wonderful and often thoroughly objectionable philosophy. Equally, the agnosticism of the noble Lord, Lord Lester, is a sufficiently similar philosophy to definitely be protected by the two sections, as is the "ism" mentioned by the noble Baroness, Lady Scotland, when she described humanism.

I am certain that there is no shortage of ink or paper, and even though the Government think that "similar" is redundant, its presence in the Bill will avoid all possible doubt. I ask the Government to reconsider. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I had not dreamt of saying anything here, but since I have been named a couple of times perhaps I could say that I think I am catered for by the reference to belief including a reference to a lack of belief. It would be odd to talk about religion or "similar" belief when it would be religion or dissimilar lack of belief. Therefore, I would be aggregated with others who have a great advantage from their point of view having belief. Like E M Forster:

"I do not believe in Belief".

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I say to the noble Baroness, Lady Miller, that I very much enjoyed the way in which she put the last amendment, and if anything was likely to seduce me to change my mind that was probably it. The reason it does not is really the reason given by the noble Lord, Lord Lester. We have the issue that in fact disbelief is dissimilar from belief. The lack of belief and belief is included in this. The purity of the drafting means that we get ourselves in more trouble by trying to see them as the same. It was for that reason that we thought it was better left out. The noble Baroness will know that initially we had thought that maybe "similar" would be apt, but on mature reflection we considered that it was actually better left out. I know that the noble Baroness does not necessarily take that view, but I know that the noble Baroness who sits behind me would take a strong view if I were to say that her humanism is similar to the noble Baroness opposite's belief. It is for those reasons that we feel that we cannot include it. I hope that the noble Baroness if not content might at least accept the current position in which we now find ourselves.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, the Minister is most certainly correct in saying that I am not content; I am definitely not content. Probably, at the end of the day, the draftsman who worked on the Employment Equality (Religion or Belief) Regulations was a different draftsman from the one who drafted this amendment. Had it been the same draftsman, there would not have been any difficulty in having "similar" in the Bill. It is a pity.

The Minister talked about "mature reflection". I am certainly mature, and so will my reflection be. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [Discrimination]:

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 6:30 pm, 19th October 2005

moved Amendment No. 111:

Page 26, line 5, leave out "religion or belief" and insert "the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief)"

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, government Amendments Nos. 111, 112, 113, 114, 116 and 118 stand in the name of my noble and learned friend Lord Falconer of Thoroton. Together, they make it clear that discrimination and harassment under Clauses 46 and 47 can be unlawful even when committed against a person of the same religion as the discriminator or harasser. That is the intention, and we believe the effect, of the clauses as they stand but the new formulation resolves any doubt on the matter. The noble Lord, Lord Lester, raised concerns about the clauses, so we took them away to see whether we could make them clearer, because it was clear in Committee that we all wanted the same thing. The question was whether the wording was correctly drafted. I hope that the way in which the amendments are drafted gives the clarity that we all sought. I beg to move.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I am grateful to the noble Baroness for explaining exactly what the amendments do, as I thought it was surprising to prohibit discrimination between persons of the same religion; it had not occurred to me before. I want to ask her a couple of questions on that. Presumably the provision might mean, for example, that Sunni Muslims would not be able to discriminate against Shia Muslims or vice versa. It should not inhibit discrimination between different branches of Christianity. It would not be for me to interfere and think of examples of that, but there was a recent case in the Jewish religion when the orthodox Jewish authorities, in the person of the Chief Rabbi, seemed to discriminate against a boy by refusing him admission to a faith school on the grounds that his mother's religious practices after her conversion were in his opinion inadequate for that school. I wondered at the time whether that was proper or somewhat extreme; I do not know, but would it be caught by the amendment?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I think that I raised the subject, giving the example of an orthodox Jew and a reformed or liberal Jew. The Government have indicated that they thought the matter was covered already, but the ingenuity of parliamentary counsel has removed any doubt about it, so I am grateful.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the short answer to the noble Baroness's question is yes, because what is important is the religion of the person complaining about the discrimination. We do not think it right that people can be discriminated against because they happen to come from a different sect of a religion from the person who discriminates. That is why we wanted to make it absolutely clear in the Bill.

On Question, amendment agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

moved Amendments Nos. 112 to 114:

Page 26, line 8, leave out "the reference to religion or belief is" and insert "a reference to a person's religion or belief includes"

Page 26, line 9, leave out paragraph (a).

Page 26, line 10, leave out "B or any other person except A" and insert "he"

On Question, amendments agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, Amendment No. 115 replicates one proposed by the noble Lord, Lord Lester, in Committee. At that time, we resisted the amendment as we believed it preferable to use "requirement, condition or practice", as in the Bill, rather than "provision, criterion or practice", words derived from European directives and used in the Employment Equality (Religion or Belief) Regulations 2003. However, further discussions have taken place between the noble Lord and others. They have convinced us that, for the sake of consistency, in this instance we should adopt the words now proposed. We are grateful to the noble Lord for raising the issue. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I feel almost as though it is Christmas Day. We are very glad of and grateful for the amendment, because it adopts the most generous definition of indirect discrimination rather than a more formal one, and therefore it is best practice rather than second-best practice.

On Question, amendment agreed to.

Clause 47 [Harassment]:

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

moved Amendment No. 116:

Page 26, line 41, leave out "religion or belief" and insert "the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief)"

On Question, amendment agreed to.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, on his Amendment No. 120, the noble Lord, Lord Lester, will I am sure shortly explain his concern about Clause 47. It is right to tell the House that, to some extent, I share his concerns. However, in the litigious age in which we live, and in the atmosphere of political correctness which sometimes gives rise to excessive expectations by individuals and absurd decisions by local and other authorities, it is right that some boundaries should be set on the definition of harassment. Regretfully, therefore, I cannot support the proposal to reject the whole of Clause 47. I also take the practical point of view—it is possible that the Minister, when replying to the noble Lord, Lord Lester, will disagree with me—that it is unlikely that the Government would wish to delete the whole clause. We certainly do not want to see it ping-ponging up and down the corridor over this issue.

My amendment resolves the noble Lord's problem, as well as my own. "Or effect" is, to use the words of the Minister in an earlier debate, redundant. Indeed, the phrase actually imports a wholly unacceptable test in deciding whether harassment has occurred. It would enable someone to complain, or at least to launch a complaint, that such and such an event had violated his dignity, humiliated him, or made him feel that he was in a hostile environment. The real test of whether harassment has occurred should be only whether it was intentionally and specifically done for one of the objectionable purposes listed in subsection (1).

We have seen educational authorities trying to change the name of Christmas to the "Winter Festival", or banning nativity plays or even the construction of Christmas cribs. There are reports that signs outside churches have been called provocative. It is not the non-Christian religious authorities that make those ridiculous complaints. It is not the Muslim, Jewish or other religious communities that raise those spurious objections. It is the do-gooders who take up unnecessary and unasked-for cudgels on their behalf. Personally, I have never had any problems with Christmas plays at school. My husband tells me that, when he first met me, I told him that I had been appropriately cast as an angel in one such play, but I confess that I do not recall that at all.

The inclusion of "effect" leaves it wide open for a person to display unreasonable or even malicious sensitivity by claiming that he felt harmed by the Christmas tree in Trafalgar Square, or that someone exercising reasonable freedom of speech by making some religious criticism, even of his own religion, was creating an offensive environment. In subsection (3) the Government, to give them credit, have tried to modify the effect of subsection (1) by introducing a sort of test of reasonableness. But even then, that test is the complainant's subjective perception and not the reasonable perception of the man on the top of the Clapham omnibus.

The redundant word "effect" has crept into the Bill, possibly through the verbal exuberance of the draftsmen. I am told that the test of good drafting is, "least said, soonest mended". To remove the word "effect", to which I object, will at one stroke remove the basis for frivolous litigation and, I hope, with the remainder of the clause fully intact, the Minister will feel able to agree. I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I strongly support the amendment for which the noble Baroness, Lady Miller, has argued powerfully. Suppose someone was addressing a gathering of people who were not necessarily known to him or her, and expressed the view that men who made their wives or daughters cover themselves from head to toe were living in the middle ages and treating their wives or daughters like cattle. That is a proposition with which many Muslims, including virtually all my Turkish friends, would strongly agree. However, many Muslims would take exception that, including, perhaps, someone in the audience, who himself had made his wives and daughters cover up. He might claim that by expressing that view his dignity had been violated. So the argument for the amendment is extremely strong and I hope that the Government will accept it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I hope to persuade the noble Baroness, Lady Miller, that she is being far too moderate, but I shall try to do that when I deal with the amendments grouped in my name, because I believe that we should throw out Clause 47 and its ancillaries altogether.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, the issue is well dealt with from the point of view of these Benches in the forthcoming amendment tabled by the noble Baroness, Lady O'Cathain. We would be wise to address some of the substantive arguments surrounding the issue of harassment at that point—and if not then, when we consider the amendment tabled by the noble Lord, Lord Lester.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I would hate to deprive the noble Baroness of a proper response at this stage. I shall try to do that without going into too much detail. I am sure that the noble Baroness knows that harassment applies only to premises and public functions, it does not apply to any of those other issues. I do understand why the noble Baroness is concerned about "or effect".

But "or effect" is the same wording as is to be found in other legislation that is directly related to Jews and Sikhs, and it is for that reason that it is included—not least because simply to rely on the purpose and not the effect would mean that it would always be open to those who had the "effect" of discriminating to say, "I didn't intend it". It is extremely difficult to dig beneath that and discover what their intention was. The way in which the legislation has worked to date in the other form was, indeed, putting those two together. So I would urge the noble Baroness to go in the other direction. We will debate these matters more fully when we come to the amendment tabled by the noble Baroness, Lady O'Cathain, and that of the noble Lord, Lord Lester.

Our position, certainly so far, is that the way in which we have drafted these clauses does hold the balance. We have tried hard to take on board the concerns that we have heard all around the House about such difficulties and we do understand their sensitivity. I hope that I can provide the appropriate degree of reassurance to the right reverend Prelate and the noble Baroness, Lady O'Cathain, about their proper concerns, but I say now that we continue to look at all these issues and will continue to look at them after this stage of the Bill.

Photo of Lord Monson Lord Monson Crossbench

My Lords, was I raising a red herring in talking about criticising the veiling from head to toe of women? Is that something which in fact would not be caught by the Bill as it stands?

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I thank the Minister for her reply. It is clear that later we shall discuss amendments tabled by the noble Lord, Lord Lester, and my noble friend Lady O'Cathain. So there is no purpose in saying anything other than that, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 119:

Page 27, line 12, at end insert—

"(5) The manifestation of beliefs or practices, or the display of symbols or artefacts, on grounds of religion or belief, is not harassment for the purposes of subsection (1) unless undertaken with the purpose described in subsection (1)(a) or (b)."

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, this is the second bite of the three-bite cherry, as we now realise. But the fact that three of us have tabled such amendments should make people realise that there is deep concern.

The amendment was drafted by the chief legal adviser to the Archbishops' Council and I am delighted to have been able to table it on their behalf. I have done so because I share the concerns of the noble Lord, Lord Lester, and other noble Lords who are concerned about the implications for free speech of Clause 47.

In particular, at Second Reading and in Committee, I raised concerns that the Bill could be used by those who are hostile to our Christian heritage. There is a realistic fear that people who want to make mischief for religious groups will raise claims of harassment to try to secure the removal of signs and symbols of religious faith.

A large part of the problem arises because of the Government's policy of wanting to persuade the courts to turn religious groups into public authorities if they carry out public functions. That could make them subject to litigation under the Human Rights Act. It would impose regulatory duties, such as those found in Clause 83 and, crucially, it could well result in litigation for harassment under Clause 47. No one is quite sure which religious organisations would be converted into public authorities. But many churches might be caught, simply because they want to act out their faith by being involved in the delivery of public services, such as services to the homeless.

From the Dispatch Box, on 13 July, the noble Baroness, Lady Scotland, regarding Clause 47, stated:

"I can see situations where public functions are carried out in church halls or other places associated with worship where objects on display in those premises, such as crucifixes, might conceivably lead to accusations of harassment".—[Hansard, 13/7/05; col. 1130.]

I was also concerned that the Minister suggested that making Bibles available could also be considered harassment unless they were specifically requested. Why should it be regarded as unlawful for a Christian organisation to have bibles and religious literature lying around? Existing public authorities would also suffer as a result of Clause 47. A hospital, for example, which allows Gideon bibles in bedside lockers could find itself defending a legal action for harassment. Surely, that is not what we want?

Public authorities funding religious groups could also be sued. In turn, that could result in fewer and fewer religious groups obtaining public funding. The Minister made a commitment to look at the issue further—she has already stated that the Government are doing so—and to see if there is any way to exempt the display of religious objects from the definition of harassment. I understand that the reason the Government have not tabled an amendment is that officials now take a different view on how harassment could be interpreted by the courts. That indicates that there is legal uncertainty.

The Home Office's new reassurances on that point amount to no more than a suggested legal argument upon which a church could rely. Maybe they will win. Maybe they will lose. Maybe they will spend a lot of money on legal fees finding out whether they win or lose.

It is notoriously difficult to predict how legislation will be used. Perhaps I may cite an example. When the previous government passed the Protection from Harassment Act 1997, it was intended to target stalkers and we thought that the number of prosecutions would be in the hundreds. In fact, I understand that it is now routinely used to tackle animal rights extremists far more than stalkers, and there are thousands of prosecutions a year, not hundreds. I do not object to that; I just use it to illustrate how, regardless of our intentions, the wording of an Act of Parliament can be used in unpredictable ways. It seems to me that we are leaving a lot to chance when we could simply place words in the Bill to make it clear that it is not intended to be used in the ways that I have suggested.

I give credit to the Government for their considerable efforts to prevent the Equality Bill being used to attack, rather than defend, religious organisations, but they seem to be peculiarly resistant on this point—or, at least, they have been until now. I think that I discovered a slight chink earlier this evening—I live in hope. That is why I tabled the amendment. I am very grateful for the advice of the Chief Legal Adviser to the Archbishops' Council. He and other officials have been engaged in prolonged discussions with the Home Office on all these issues, and this amendment is their response.

The amendment does not put forward a fundamental exception to the definition of "harassment"; it does no more than enshrine the Government's own reassurance about Clause 47 by making clear that it cannot be used to force the removal of religious symbols or manifestations of religion, such as the saying of prayers or the putting out of Bibles. Surely that is perfectly reasonable. How many of us would want to see a religious group hauled through the courts over matters such as these? I am sure that none of us wants to end up like the United States, where there is a constant stream of litigation from anti-religious groups seeking to erase all public reference to the Christian faith. There, an atheist is currently litigating to remove the phrase "under God" from the pledge of allegiance. It occurred to me that the harassment provisions could lead to court cases with attempts being made to remove the word "God" from our national anthem. I sincerely hope that that is not so.

The amendment is very modest. It specifically does not protect actions which are deliberately intended to harass. None of us wants that. However, it does give certainty where currently there is none. If Ministers and their officials can change their minds over the interpretation of this clause as it stands, so can the courts. And what about local authority legal advisers and those advising charities? Will this uncertainty not lead to them taking a very cautious approach, removing religious symbols rather than risking legal action? The Minister may give assurances on the Floor of the House, but most lawyers do not read Hansard; they will be reading the wording of the Act. Such uncertainty creates a risk of gross infringement of religious liberty. Quite unnecessarily, it places religious groups which carry out public functions in a precarious position.

The Prime Minister is on record as supporting the contribution of "faith-based welfare" providers and supporting their ability to operate consistent with their religious ethos. In a speech shortly before the election, the Prime Minister said that churches made a "visible, tangible difference". He said that he wanted to see them,

"play a bigger, not a lesser, role in the future".

That was on BBC News on-line on 22 March 2005. But if those who receive public money to provide public functions are placed in the firing line under the Bill, they will play a lesser role and not a bigger role as the Prime Minister wants. They will be frightened off. They will be excluded by nervous funding authorities.

I am told that the Salvation Army has been making strong representations to the Home Office about these matters. I believe it would be terrible if organisations such as that withdrew their services because they felt that they were likely to be targeted under Clause 47. Whatever one's religious beliefs, I think that we all have the greatest respect for the Salvation Army, and it would be appalling if the Bill were to make that happen.

Simple wording such as that contained in the amendment will solve the problem. I hope that the Government will look kindly on it. I beg to move.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, had the communication system between the national institutions of the Church of England and this House worked, my name would have been added to the amendment, and I rise to support it. At stake here are two issues which need clarity. The noble Baroness's speech has clearly set them out and the amendment is aimed at producing clarity whereas, at present, we seem not to have it.

The first issue is the implication and extent of Clause 54 for civil society and religious organisations. As I understand it, the present law now stands following two clear decisions by the Court of Appeal on the implications of the Human Rights Act for charities. Charities and voluntary organisations which provide services to the public with the benefit of public funding will not qualify as public authorities for the purpose of Clause 54 other than in exceptional circumstances. But I understand that the Government are not entirely happy with that legal ruling. Therefore, there is now in the public forum an uncertainty about where we stand on that issue, and we need some clarity on it.

An important point of principle is at stake here. We need to keep a clear distinction between civil society, charitable and religious organisations and the state. The trouble with an over-generous interpretation of Clause 54 is that, in drawing civil society's organisations widely into the public authorities, that distinction will be blurred, and I think that we need some help with that.

The second issue that has been raised concerns the meaning of the word "harassment". It is clear that from a popular point of view and understanding of that word there is no desire by responsible organisations in the religious, charitable or voluntary sectors to engage in activity that manifestly harasses people. But, as the noble Lord, Lord Lester, pointed out in Committee, the phrase "violation of a person's dignity" is a very uncertain concept in law. It might give ample opportunity, especially in the context of religious beliefs and practices, for people to challenge what they find to be unwelcome. I think that we need some clarity on those issues if we are to have contentment. If we can get that clarity, that will help us.

However, as the noble Baroness has just said, the Government may want real partnership between independent, religious-based organisations which make a contribution to the public welfare and are publicly funded in those properly agreed partnership arrangements. But if there is a fear that a clause such as this can be used to prevent those organisations maintaining the integrity of their beliefs, which is the driving motivation for their work in the public sphere, there will be withdrawal. We need to address that issue. I understand that the Government want to work with us on this matter and I am sure that there is much commonality of understanding here but, if we could find a process for getting the wording right, that would help greatly. Therefore, what the Minister says in reply will be very important.

The noble Baroness's amendment has our support because it expresses the concerns held widely in the churches. Perhaps I may say on behalf of these Benches that, if the national institutions of the Church of England are concerned, that concern really should be taken seriously.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, what would be convenient for the Minister? Would it be convenient for her to reply to the debate so far and then for me to make my contribution, or would she like me to speak now so that she can then reply to everyone? It is a matter for her convenience and that of the House.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, it is a matter for the House. If noble Lords want to take that course, I would in any event answer the point made by the noble Baroness, Lady O'Cathain, and deal with the point made by the noble Lord subsequently. If it is convenient to the noble Lord, Lord Lester, for me to answer the noble Baroness, the noble Lord can then incorporate those points on his amendment that he feels I have not addressed adequately, when we move on to deal with it. Perhaps I can answer the noble Baroness first and the noble Lord can reserve his comments and ire for when he comes to speak.

I believe that the noble Baroness, Lady O'Cathain, and the right reverend Prelate know that the Government understand the anxiety expressed by them on these issues. As my right honourable friend the Prime Minister made clear, we very much welcome and are grateful to the religious and nonreligious bodies for joining with us in a more holistic and caring way to meet the needs of those in need. We want to explore and enhance those opportunities for partnership. We are very sensitive to the issues to which the noble Baroness has properly alluded.

Therefore, the question for us is: do these provisions that we have set out give the comfort that we all want to see? The noble Baroness will know that much time and effort has gone into considering the provisions to see whether they reassure us. We shall consider the issues raised by the noble Baroness and the issues that the noble Lord, Lord Lester, will raise before we come to a final conclusion. However, we believe that these provisions are satisfactory and I would like to explain why.

We are very sympathetic to the thrust and purpose behind the amendment tabled by the noble Baroness, but it may be worth remembering that harassment will apply only in the areas of public functions, education and the management and disposal of premises. It will not apply to the provision of goods, facilities and services by private individuals or commercial or non-commercial organisations. Even within those areas, where the concept of harassment applies, an action should not normally constitute harassment when something is done solely on the grounds of A's own religion or belief—not the person who complains about it. If an action is to be regarded as harassment under Clause 47, there must be a reason for doing it that relates to the religion or belief—including the lack of religion or belief—of B or someone else. The Bill already makes this clear in Clause 47(2)(a), so it will not be enough that a person simply finds an environment offensive or intimidating. Therefore, we feel that the right to express one's own religion or belief is already protected by the provisions of the Bill.

This does not mean that religious objects will never be covered by the harassment provisions. Posters which are clearly aimed at converting others to a particular faith, rather than celebrating a faith, could be considered harassment if they were deliberately brought or put in a situation to deal with B's religion. For harassment to be established, a poster would have to be shown to have violated B's dignity or to have created an intimidating environment for B. That would be on the basis that it should reasonably be regarded as having done so on B's perception and all the other circumstances. On balance, we believe it is right that people attending public functions should be able to do so free from fear of unwelcome proselytisation.

The amendment that the noble Baroness has put forward is tempting in that it would rule out absolutely the possibility of a case of harassment arising from the display of religious objects, which has been the subject of much debate in the House. But we remain convinced that symbols that are present because of the religion or belief of the person or organisation that has put them there, will not give cause for a claim of harassment because they are there on grounds of A's religion or belief, not B's or anyone else's.

Furthermore, the noble Baroness's amendment would result in a claimant who felt he or she had been exposed to unwelcome material deliberately aimed at his or her religion or belief while receiving a public service having to demonstrate the intent on the part of the provider to cause harassment. We believe that that would be an inappropriate extra hurdle to overcome in the context of the kinds of service we are dealing with here.

I recognise that, once this Bill leaves this place, we will have no ability to control the interpretation that is put on it. That is the point made by the noble Baroness. I can certainly assure the House that we do not intend to sit back if we find that we are wrong about that and the Bill's provisions are impacting adversely on faith groups' ability to provide public services—which we value highly because they are effective. We shall retain through Clause 65, as we propose to amend it today, a power using the affirmative resolution procedure to create an exception in Clause 54 or to vary an exception in Part 2 which would enable us to step in if, for example, drug rehabilitation projects were found to be running into difficulties because of these provisions.

We greatly value the contributions that a wide variety of faith and other community groups make to public service in this country. We shall seek to protect that through appropriate exceptions, rather than introduce inequalities in the definitions used to identify harassment. For those reasons, and with that assurance, I resist these amendments at this stage.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the right reverend Prelate the Bishop of Chelmsford for so ably supporting me on this amendment. I thank the Minister, for whom I have great respect. But in this case she has not given me any crumb of comfort at all. The debate on the amendment tabled by the noble Lord, Lord Lester, might give us something—a third bite at the cherry—or we might be able to do something more. When the Minister spoke of the Bill leaving this place, all my alarm bells rang. I take absolutely no comfort in what may happen to the Bill when it goes down the corridor. I am sorry but I do not. That might sound horribly cynical, but I have been here long enough and I am long enough in the tooth to realise what can happen.

The Minister made the point about a poster being deliberately provocative, so I would like her to consider this point. A great comfort that I know people with faith feel is seeing a poster that says,

"Come to me all who are heavily laden and I will give you rest".

Suppose a particular charity or church had a lunch club that was supported by a local authority and such a poster was put up on the wall, would that be regarded as harassment? The noble Baroness shakes her head, but the reality is that there are people out there with one sole objective and that is to cause mischief for people of faith. They do that; I have seen it; I have been on the receiving end of it. I am afraid that I am really concerned about this issue. Perhaps I am going over the top about it, but we need clarity and no uncertainty. The right reverend Prelate the Bishop of Chelmsford made that point. On the basis that I am very anxious to move forward and listen to what the noble Lord, Lord Lester, has to say about his amendment, for the moment I shall seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Lord Lyell Lord Lyell Conservative

My Lords, I have to advise the House that grouped with Amendment No. 120 is Amendment No. 126. If Amendment No. 126 were to be accepted, I would not be able to call Amendments Nos. 127, 128 and 129. That is a technicality.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I share all the concerns that have been expressed. My task is to try to explain what is not yet clear. Some questions of fact need to be borne in mind when we examine the issue. My bottom line is that I hope the Government will ultimately decide to take this away to the Discrimination Law Review where it can be properly considered. That seems to be a sensible, practical outcome.

The first point I draw to the attention of the House is that the Bill is rightly forbidding direct and indirect religious discrimination in education and housing and by public authorities. Therefore, the starting point is that we are already creating civil rights and civil wrongs to deal with direct and indirect religious discrimination in the three areas where the new tort of harassment is contemplated. So nothing I am about to say in any way undermines the need to tackle religious discrimination in those areas.

Secondly, Clause 48 deals with goods, facilities and services. The Home Office, in its wisdom, has decided to exclude harassment from all goods, facilities and services provided to the public. Why, if there is to be a tort of harassment, should it not apply to an hotel or boarding house, or to anyone providing goods, facilities or services to the public? The answer is that the Home Office rightly and sensibly saw the awesome implications of creating a new civil right and civil wrong that would allow an individual victim to sue for the tort of religious harassment in all the situations covered by Clause 48. It was not worried only by the free-speech implications of dealing with booksellers; it simply knocked the whole of Clause 48 in the context of harassment into fairly long grass by saying, "That will all be dealt with by the Discrimination Law Review".

The first important question to bear in mind is: why on earth has the Home Office not adopted the same sensible approach to the tort of religious harassment in the context of housing—there are very sensitive relationships between someone who manages a block of flats and the tenants—or of education—there are very sensitive relationships between those who run schools and the pupils—or of public authorities, including faith groups, charities and so on? I have received no coherent answer to that question—no answer at all—except that it is to secure consistency. I must therefore explain why it does not secure consistency. I am grateful to the Minister and her advisers for having met me to discuss these matters not once but twice. I am sorry to tax the patience of the House, but I need to give this explanation because someone must put on record why Clause 47 should be deleted at this stage and reconsidered. I apologise and I promise that it is the only long speech I shall make.

I asked a Question of the Minister and on 10 October she gave a Written Answer in which she stated that the Home Office is,

"unaware of what legislation other EU or Commonwealth countries are implementing to tackle religious discrimination and harassment".—[Official Report, 10/10/05; col. WA 70.]

I found that a little surprising, because the Government have to decide how best to give effect to EU equality directives, including the concept of harassment on religious grounds. One might have supposed that it was relevant for the Home Office to ask itself how other member states had done that. I am not aware of any state of the European Union, or of the Commonwealth, which has applied the concept of the tort of harassment certainly in this kind of area. The Government should inform themselves about what is happening in other jurisdictions.

It is important then to tell your Lordships that the tort of religious harassment in housing, education and public authorities is not required by European Union law. The EU directives expressly state that the concept of harassment in the areas they cover can be defined in accordance with national laws and practices of the member states. But Her Majesty's Government have not done that. In areas where EU law applies, they have simply copied in the undefined definition of the tort of harassment. The regulations giving effect to EU law have not given, as they could have done, a more concrete definition in accordance with British national law and practice. They have simply, like Clause 47, repeated the formula in the EU directives without definition.

The next point is a little legalistic. In the case of Omega, the watch company, before the European Court of Justice, the Advocate General explained in her opinion why the concept of human dignity, which underlies all fundamental human rights, needs to be given concrete meaning and definition if it is to found legal rights and obligations. She said, about a case prohibiting games simulating acts of murder with submachine gun-type laser targeting devices, that,

"there is hardly any principle more difficult to fathom in law than that of human dignity".

She observed that both in international law and national legal systems, human dignity appears primarily as a general article of faith or as a fundamental or constitutional principle, not as an independent justiciable rule of law. This is because it is a generic concept with no traditional legal definition or interpretation. It does not have concrete substantive form. For that reason, speaking for myself, it cannot form the basis of an independent tort of harassment as it does in Clause 47.

Furthermore, our British courts have declined to give the concept of human dignity any precise definition, although references to the term have increased since the Human Rights Act came into force. I repeat that the inclusion of this tort in this part of the Bill is not required by European law. In addition, there is no requirement to include it for reasons of consistency. On the contrary, the Home Office has already excluded it for the provision of goods, facilities and services to the public, even though the Race Relations Act 1976 applies it to goods, facilities and services across the board. So there is no consistency of argument about copying in, as the Minister puts it, for Jews and Sikhs the same for other groups. That is completely inappropriate. What she calls the references to Jews and Sikhs is the Race Relations Act, which applies to any ethnic discrimination. It includes harassment, but it has not been copied in for goods, facilities and services. There has been no explanation of the need to include the tort of harassment in the sensitive relations about which I have spoken.

I submit that, given the undefined nature of what constitutes religion or belief, of what constitutes violating human dignity or of what constitutes "offensive environment"—not merely an intimidating one—in Clause 47(1); and given that there is no filter, no Attorney General, between the claimant and the defendant in proceedings brought under Clause 67, the inclusion of this tort would encourage divisions between different religious groups and different belief groups. Such litigation would not be in the public interest.

A complainant could bring proceedings under Clause 67 claiming that her human dignity had been violated or that the defendant had created an offensive environment. For example, the owner of a block of flats, who is a believer in the well known evangelical Jews for Jesus movement and believes that Jews would be well advised to become Christians, and who does not discriminate against Jewish tenants and treats them totally equally, puts up a "Jews for Jesus" poster recommending that they do the sensible thing and turn to the other Abrahamic faith. The Minister agrees with those who said that that would be a tort, as he is doing it deliberately because of the Jewish tenants' religion, although there is no question of effect. I find it wholly unacceptable that the owner of the flats should be subject to a tort action. The same applies to a hotel or boarding-house, but, for unfathomable reasons, these are not covered, because they are under goods, services and facilities.

I am almost coming to the end. The next point is that the Protection from Harassment Act 1997, which has already been mentioned, contains a general tort of harassment that is neutral, and could be used to deal with cases of religious harassment, if needed. That tort is available to deal with harassment that is not only religiously motivated but which is homophobic, or simply motivated by ill will. I do not understand why that tort would not be completely sufficient in this area.

The inclusion of religious harassment in Part 2 is unacceptably vague. The tort sweeps too broadly, and threatens to be applied in a way that breaches the Convention rights of freedoms of others. It has been included arbitrarily, applying to housing and education but not to goods, services and facilities. The real mystery is that religious discrimination is already well protected under Part 2, and this is wholly unnecessary. All these points should be considered by the discrimination law review, and should certainly not be the subject of a tort that this House approves. Therefore, although I will not press the amendment to a Division today, I give notice that, unless we get rid of it before Third Reading, I will want to come back to it then. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I thank the noble Lord for that extensive explanation. I recall that in Committee we talked about harassment in certain areas, and I thought that at one time the Government accepted a number of points that were made. Frankly I cannot see why it should be lawful for anyone to harass anyone. In this part of the Bill we are discussing education and schools. Does this mean that a religious maintained school would have an exemption to allow it to harass non-religious pupils? That would not be at all acceptable, and I cannot believe it is the intention. I hope the whole issue of harassment, which is referred to in this list of amendments, could be reconsidered by the Government.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, with the leave of the House, before I comment on what the noble Lord has said, I would like to say a word about Amendment No. 119. I had intended to speak after the noble Lord, Lord Lester but somehow—the noble Baroness then made her comments—the opportunity went by. I would not like my noble friend to think that I was not supporting her amendment, as indeed I do.

I am grateful to the noble Lord, Lord Lester, for that long explanation of why it would be better to remove Clause 47 altogether. I hope that the Minister will simply say in her response that she will take the whole matter away and think about it, so that we can make a decision over what needs to be done before Third Reading.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I rise briefly to give my full support to the amendment of the noble Lord, Lord Lester, to delete Clause 47.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I assumed that the noble Baroness, Lady Miller, wholly supported the noble Baroness, Lady O'Cathain. She can rest assured that at no stage did I think there was a cigarette paper between them.

The noble Baroness, Lady Turner, is right: the harassment is an important point. My response to the noble Lord, Lord Lester, is to recite all the reasons why we say Clauses 46 and 47 are important and should be in the form that they are in the Bill. Many of those arguments were fully recited when we were in Committee. I could add a few things about that, but I want to make it clear at the beginning that, even though I do not accept the premise upon which the noble Lord puts those matters, we would want to take them away and come back with a full response. We will do so between now and the next stage of the Bill. If that suits the House, and bearing in mind that it is 7.25, I will not seek to weary noble Lords with a 10-minute exposition of why the Government's case is a consummation devoutly to be preferred.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, that is a wise course. I hope that at some time the Government will answer my simple question: why leave out this provision for goods, services and facilities but put it in for education and housing? On the basis that this will be reconsidered before Third Reading, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [Premises]:

[Amendments Nos. 121 and 122 not moved.]

Clause 51 [Educational establishments]:

[Amendment No. 123 not moved.]

Clause 52 [Section 51: exceptions]:

[Amendment No. 124 not moved.]

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Government Whip

My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begin again not before 8.27 pm?

Moved accordingly and, on Question, Motion agreed to.