§ 4.5 p.m.
§ Report stage resumed.
Lord JACQUES moved Amendment No. 8:
Page 18, line 22, after ("7(3)") insert ("or(4)").
§ The noble Lord said: My Lords, I spoke to this Amendment when moving Amendment number 3. I beg to move.
§ Clause 30 [Liability of Employers and Principals]:
Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 9:
Page 19, line 14, at beginning insert ("For the purposes of any civil but not of any criminal liability under this Act").
§ The noble and learned Lord said: My Lords, I rise to move this Amendment which I shall not pursue if I can get the assurance of the noble Lord, Lord Harris of Greenwich, that the object of my Amendment is attained by the two next Amendments, numbers 10 and 11, which stand in his name. I look forward to the time when the Parliamentary draftsmen will accept a small piece of my draftsmanship. Perhaps when my birthday comes round next year I may be given a present, but in the meantime I look for the assurance which I have sought and then I will 235 seek leave to withdraw my own Amendment in favour of the Government Amendment. I beg to move.
§ Lord JACQUES
My Lords, I give the assurance which the noble and learned Lord has asked for, but I would point out that we could not accept his Amendment because he overlooks the consequential deletion of the words "for the purposes of this Act" in line 15.
§ Lord HAILSHAM of SAINT MARYLEBONE
I am very much obliged to the noble Lord for his assurance, and in pursuance of my undertaking I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
Lord JACQUES moved Amendment No. 10:
Page 19, line 15, after ("Act") insert ("(except as regards offences thereunder)").
§ The noble Lord said: My Lords, I beg to move Amendment No. 10.
Lord JACQUES moved Amendment No. 11:
Page 19, line 21, after ("Act") insert ("(except as regards offences thereunder)").
§ The noble Lord said: My Lords, I beg to move Amendment No. 11.
§ Clause 41 [Establishment and Duties of Commission]:
Lord BROCKWAY moved Amendment No. 12:
Page 24, line 33, after ("individuals") insert ("and including representatives of Local Community Relations Councils,").
§ The noble Lord said: My Lords, I beg to move Amendment No. 12 and perhaps to spare the time of the House I can also speak to Amendment No. 13. The purpose of both these Amendments is to emphasise the importance of the local community relations councils. This Amendment suggests that on the Commission there should be representatives of the local community relations councils and Amendment No. 13 suggests that they should be mentioned when financial assistance is given to bodies which are seeking the purposes of this Bill.236
§ If this Bill is to be effective in, I will not say ending but decreasing racial feeling in this country, it will in the main be due to the work of the local community relations councils. They are the bedrock of seeking harmony between the races in this country. I have been quite astonished by the influence which they have. They generally represent not only all the political parties and all the Churches but also the organisations of the different races in their locality. It has been quite astonishing how the association in this way has led to a decrease of racial feeling in those localities. They have not merely had their discussions; they have had their social occasions, they have had their exhibitions, they have had their dances together, they have had their outings, and in many places where there has been racial antagonism they have succeeded in replacing that by racial harmony. They are the instrument at the grass roots by which the intentions of this Bill will be carried out. I suggest that their activities should be recognised by giving them representation upon the Commission.
§ My Lords, in the succeeding Amendment I also ask that they should be particularly mentioned when financial assistance is given to co-operative bodies. I know from contact with some of their representatives that they feel a little hurt that in this Bill there is no mention at all of the local community relations councils. They were mentioned in the 1968 Act and they were recognised in that Act. Now they are omitted. They are omitted after years of fundamental service given to the ending of racial antagonism. Particularly due to the fact that they are now omitted from this Bill when reference was made to them in the 1968 Act, I hope that Her Majesty's Government, even if they had a different view when I began to speak, may now consider the proposals I have made. I beg to move.
§ 4.11 p.m.
§ Lord WELLS-PESTELL
My Lords, my noble friend Lord Brockway moved a similar Amendment to this one at Committee stage. Your Lordships will not misunderstand me if I say that I tried to deal with the Amendment at that stage. However, may I just say this, because I think it needs to be said in view of what has been said by my noble 237 friend. The Government are not unmindful of the value of the contribution which community relations councils have made, and the part that they have played in the community in fostering a much better relationship between different groups within our own community. It is not just something to say when I say that the Government consider the role of these councils is of considerable importance. Let us face the fact that if we are going to achieve what we have set out to achieve in the Bill, then it will depend very largely upon the competence, expertise and ability of community relations councils.
Having said all that, I hope my noble friend will not misunderstand me when I remind him of Clause 41 which says that there must be not more than 15 individuals who form the body of the Commissioners named as the Community Relations Commission. Of necessity, a very substantial number of members obviously have to be able to represent the different ethnic groups within the community, but I think it really must be left to the Commission to decide on the basis of the merit and experience of the individual, the competence and ability of the person, and the kind of contribution which the person can make. The Government—and I believe the Government are quite right in this matter, because there is no one more concerned about this than I am—are quite right when they say that the members of the Commission who are representatives of particular sections of the Community, or of a particular interest, should not be seen as having, shall I say, specific interests which they alone are going to pursue.
My Lords, we want to get a group of people who will be able to take a broad view, who will be able to look at this from a very broad canvas. If this Amendment is inserted:… include representatives of the local community relations councils",then, I think, the Bill in some measure will restrict the value of the community. My noble friend Lord Brockway also spoke in support of his Amendment No. 13: that is, to include local community relations councils. I can deal briefly with this, though I hope that my noble friend will not think, because I am dealing briefly with it, that one has no sympathy for what my noble friend is trying to do. 238 But I would refer him to Clause 42(1), which says:The Commission may give financial or other assistance to any organisation appearing to the Commission to be concerned with the promotion of equality of opportunity, and good relations, between persons of different racial groups,…".With the greatest respect, I do not think it can be spelt out more clearly than that. The purpose of the Amendment of my noble friend to include local community relations councils is already contained in Clause 41. I do not think, and the Government do not think, that it is necessary to spell it out, because in point of fact it is already there. I hope my noble friend will feel that what I have said really meets his point. There is no point in putting into the Bill something which is already there, even if one wants to put it in for emphasis.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, if I may just intervene for about three sentences. By a slip of the tongue the noble Lord, Lord Wells-Pestell, said that the appointment of the membership of the Commission was a matter for the Commission. Of course, the Bill prescribes that it should be for the Secretary of State, and that is how we think it should be. Secondly, I agree with the noble Lord who has just spoken that it is a matter for the Secretary of State. From this side of the House, I endorse what he said about local community relations councils, and I endorse what he said about the value of their work, which is perfectly accepted by us. In agreeing with the conclusions which the noble Lord has arrived at, I would only say that I hope that the members of this Commission will not be regarded as representatives, but as individuals, however wide, in a broad and popular sense, the spectrum of communities of which they may be notable examples, in that they will be individuals. I hope that their loyalty will be to the Commission and its purpose, not to any community from which they come.
§ Lord WELLS-PESTELL
My Lords, with the permission of the House, I should like to thank the noble and learned Lord, Lord Hailsham of Saint Marylebone, for correcting my omission about the Secretary of State. It is important that this should go in.
§ Amendment, by leave, withdrawn.
§ Clause 42 [Assistance to organizations.]:
§ 4.19 p.m.
Lord BROCKWAY moved Amendment No. 13:
Page 25, line 19, after ("organisation") insert ("including local Community Relations Councils,")
§ The noble Lord said: My Lords, I make a special appeal to the Government to be ready to accept this Amendment. It does not imply that decisions should be reached about actual representation of the community councils on the Commission. It argues only that where financial contributions are made to organisations supporting the purpose of this Bill there shall be particular attention to the local community councils. They were mentioned in the 1968 Act, and they are not mentioned now. They feel a little hurt that there is no mention of them.
§ Surely, when financial contributions are being made to those who are supporting the purposes of this Bill, the first contribution that should be made in the localities should be up to the local community councils who are a part of the whole administration of this Bill. It is a comparatively small point. All I am asking is that the words "including local Community Relations Councils" should be added. Surely that is a very modest request to make. I hope the Government will accede to it.
§ Lord WELLS-PESTELL
My Lords, I was perhaps in error in trying to deal with Amendment No. 13 at the same time as I dealt with No. 12. I only want to repeat very briefly what I said then; that is, that the Government recognise the feelings of the bodies to which the noble Lord has referred but do not think it is necessary to spell it out in the terms of his Amendment in the Bill. I pointed out that Clause 42 sets out very clearly what the Commission may do; they may give financial aid to a whole variety of bodies with a whole variety of contributions, which must of necessity include the community relations councils. Because it is implicit in Clause 42, the 240 Government do not feel that it should be spelled out. I hope the noble Lord will feel that the situation is met, while recognising the valuable contribution which the Community Relations Councils are making.
§ Baroness SEEAR
My Lords, if the intention is that the community relations councils should be treated in this way, what harm could it possibly do to include them in the Bill in three or four words? That is nothing compared to the length of Bills that come before your Lordships' House today. If the intention is there, and if it would reassure the community relations councils, who are naturally concerned that they appeared in the 1968 Act and do not appear in this Act, surely it would be a reasonable gesture on the part of the Government, in recognition of what they have done, to include these four words.
§ Lord RITCHIE-CALDER
My Lords, I just want to add my support to my noble friend and the noble Baroness, Lady Seear, by saying that I think it would be a very small concession to make to recognise something that has been working for years. Speaking as one of the original members of the Community Relations Commission, I know, as does my noble friend Lord Pitt, the enormous amount of work that we put into building up these local community relations councils, and the enormous amount of self-sacrifice which has been put into this cause and how successful they have been. I think it would be less than generous, in fact a positive insult, if this Amendment was not accepted.
§ Lord WELLS-PESTELL
My Lords, I am sorry that my noble friend Lord Ritchie-Calder takes that point of view. It is not the intention to slight the community relations councils in any way. If something is implicit in a Bill—and this, I suggest, is—there is no need to spell it out. My noble friend says, "Well, why not include it?" If we were to do that, we should be adding things to almost every clause and Bills would become twice as long and would take twice as long to discuss. If there was any suggestion whatever that community relations councils would not be covered by Clause 42, then I would say there is very good reason for doing it. But I really think we have got 241 to get away from spelling out every mortal thing when the procedure and the opportunity and the facilities are there to meet their need. I cannot say more than that; that it is quite unnecessary.
§ Lord BROCKWAY
My Lords, I feel very much inclined to divide the House on this. I am completely dissatified with the answer which has come from the Front Bench. What I will do is to ask the Government to consider this point before the final decision about the Act is taken. I think the case which has been put, the inclusion of the reference in the 1968 Act and the exclusion of the reference now, the recognition that these local councils are the effective bodies for good race relations in the country, is unanswerable. If I may say so, what has been said from the Front Bench does not answer it in the least. Therefore, I ask the Government to give an assurance that this matter will be considered before the final draft of the Bill is secured. Otherwise, I shall divide the House on the subject.
§ Lord WELLS-PESTELL
My Lords, with your Lordships' permission, I think it is obligatory on a Government, when they are asked to consider a matter, to do so. From my own point of view, I would give an assurance, and I will see to it that very careful consideration is given to this. But I must make it quite clear that it does not follow that this Amendment or one similar to it will be accepted. However, I give my noble friend and your Lordships an assurance that we will certainly look at it.
§ Amendment, by leave, withdrawn.
§ Clause 45 [Codes of practice]:
§ 4.25 p.m.
Lord AVEBURY moved Amendment No. 14:
Page 26, line 12, after ("may") insert ("after consultation with representatives of employers and trade unions").
§ The noble Lord said: My Lords, with this Amendment it might be convenient to discuss the two following Amendments, 242 Nos. 15 and 16, which are concerned with the same or related matters; that is, the codes of practice which are to be issued under Clause 45. The first of the three Amendments arises from a point which was made at Second Reading by my noble friend Lady Seear; that is, that there is far more likelihood of codes of practice being accepted and properly operated if they arise from a process of consultation with those who have to make them work. In suggesting that the Commission should not merely tell industry what codes of practice it shall operate but shall first engage in consultations with employers and trade unions, we are following the precedent of the Health and Safety at Work Act, where, generally speaking, the consultations can be said to work fairly well. People are behind the codes of practice once they are issued.
§ It may be said, as the noble Lord said on the previous Amendment, that obviously the Commission intends to consult representatives of employers and trade unions and it is not necessary to write it into the Bill. I certainly hope that will not be the answer we get from the Minister, because even if it is the present intention to engage in that sort of consultation, we could not he certain that future Secretaries of State would follow the practice that is intended to be followed by this Government. I think it would be far safer if we were to have it written into the Bill so that everyone would know exactly where they stand.
§ The second and third Amendments arise from a short discussion we had on Committee when we discussed the words, "reasonably practicable". The noble and learned Lord the Lord Chancellor said to the Committee that the phrase is well known to the law, and he pointed to legislation such as workmen's compensation and the Factory Acts as examples of legislation where everybody understands what those words mean. I beg leave to dispute whether in fact employers do understand those words.
§ Much of the criticism made of the Factory Acts is that they are not properly enforced, that with a small number of inspectors you cannot get round to see that everybody is properly observing the provisions. They get fairly widely ignored. There are not enough prosecutions and, when there are, quite often it 243 is discovered that the employers are amazingly ignorant of the provisions of the Act and of the steps they should have taken in the terms that we are discussing now; that is, reasonably practicable steps to secure the health and safety of their employees. I am afraid that incorporating the same words in the Bill on the grounds that they have stood the test of time will not be satisfactory from the point of view of the employers or of those in industry who have to make the provisions work. So I feel that it would be desirable to widen the terms of Clause 45 to include the codes of practice on this matter as a third heading.
§ I remind your Lordships that we are talking about a permissive clause. We are not saying that the Commission has to issue codes of practice under any of these headings but simply that it may do so. On the basis that we are enlarging the powers of the Commission in an area which may be of tremendous importance to employers, I hope that the Government will accept the Amendment, as well as the two subsequent Amendments. I beg to move.
§ 4.31 p.m.
§ Lord JACQUES
My Lords, with permission I, too, should like to speak to all three Amendments at the same time. The first Amendment, Amendment No. 14, would lay a statutory duty on the Commission to consult representatives of employers and trade unions before issuing a code of practice. We accept that there must be consultations with appropriate bodies which are concerned with the practical application of codes of practice. I therefore undertake that, on Third Reading, the Government will introduce a suitable Amendment to that effect and I hope that, with that assurance, the noble Lord will withdraw the Amendment.
I turn to the second and third Amendments—Amendments Nos. 15 and 16—which seek to add to the list of purposes for which codes may be issued guidance on the reasonably practicable steps an employer may take to prevent his employees from doing anything unlawful under this Bill in the course of their employment. These Amendments reflect the concern expressed during our discussion of what is now Clause 30 of the Bill in Committee by the noble Lord, Lord Avebury, that 244 guidance should be given to employers on the meaning of "reasonably practicable". There is a need for an employer to be given such guidance as the Commission feels able to provide on the steps that he can take to ensure that his actions and those of his employees are lawful. However, in practice it may be very difficult for the Commission to provide comprehensive guidance of the kind proposed in the Amendments, because of the diversity of circumstances between one employer and another. For example, the circumstances to be covered in the case of a small manufacturer may have little in common with those of a large public sector employer.
Finally, the Amendments seek to authorise the Commission to give guidance on the matter set out in Amendment No. 16. I would assure the House that the Commission already has that power under Clause 45(1)(a). We feel that that amply covers the point raised that the Commission could, if it felt it necessary, issue the kind of advice which the noble Lord, Lord Avebury, and the noble Baroness, Lady Seear, have in mind. We believe that the discussion that we have had will serve a useful purpose because we know that the Commission takes note of what is said in this House. With that explanation, I hope that the noble Lord will withdraw the Amendments.
§ Lord HAILSHAM of SAINT MARYLEBONE
I wish briefly to speak on Amendment No. 16. I believe that it would be extremely helpful if any codes of practice formulated by the Commission contained guidance on the kind of steps which employers could usefully take in order to discharge their duty. In a way, I am sorry that the noble and learned Lord the Lord Chancellor has left the Woolsack for his distinguished successor because this is a matter of which I believe he would have taken particular note. I hope that the noble Lord, Lord Jacques, will draw it to his attention. I do not believe that it is possible to define what is reasonably practicable over the whole range of possible contingencies. What is reasonably practicable is a question of fact and not of law. Questions of fact are not susceptible to legal definition.
Unfortunately, the Amendment confines itself to the opportunity to give what is described as "the"—not even "a"— 245 definition of what is reasonably practicable. I do not believe that the Government can be expected to put that into the Bill. On the other hand, I should have been a little happier if the noble Lord, Lord Jacques, had considered putting in on Third Reading an Amendment of his own adding to the powers of the Commission the opportunity to give guidance, both as to the types of step which an employer could reasonably be expected to take and as to the way in which he could reasonably be expected to discharge the obligation imposed upon him by the Act if he is to avail himself of the defence to which the Amendment relates. I should have been a little happier had the noble Lord undertaken to consider putting down an Amendment to that effect on Third Reading. I heard him say that it is not necessary, but I am not sure that it would not be helpful. I wonder whether the noble Lord would be willing to go as far as I have suggested.
§ Baroness SEEAR
I believe that both my noble friend Lord Avebury and I would agree that the Amendment, as worded, is neither necessarily the only way to achieve what we had in mind nor even the best way to do so. However, what the noble Lord, Lord Jacques, has said does not entirely meet the point we are trying to get at. This has to be seen in relation to what we have previously said about consultation in codes of practice. Indeed, I see what we are proposing here as part of the code practice.
The reason why I think that it would be extremely valuable to have this spelt out, and to have it spelt out after the consultative process has been gone through, is that, as my noble friend said, one is much more likely to get policies followed out if the people who have to operate them have to bend their minds through the consultative process to the steps which ought to be taken. Ideally, what I should like to see happen here is not separate consultation with the TUC and the CBI but a joint committee of trade unionists and employers getting down and working on the code and on the steps necessary to implement the intentions of the Bill, and submitting this to the Secretary of State. It will then be their work. Their minds will have gone into it and they will be committing themselves to a line of action which they will have subsequently to 246 adopt and which is not imposed from above. The more they themselves spell out what needs to be done, the more likely it is that it will be done.
I feel that we may perhaps forget how much people in industry now have to implement in terms of legislation. Indeed, although we pass all this legislation and believe in consequence that it is being observed on the floor of the factory, I know already from looking at what is happening in connection with the Equal Pay and Sex Discrimination Acts that, rightly or wrongly, a great deal of it leaves people at factory level totally cold. They do not really know what is contained in the legislation. They have a great many other things to do and they are simply ignoring what we are saying here in Parliament. If they have been involved in working this out they will be that much less likely to ignore it. That is why I should like to see it included in the code of practice and submitted to the whole process of consultation on the lines that we have suggested.
§ Lord JACQUES
My Lords, I have already undertaken to submit an Amendment in lieu of Amendment No. 14, if that Amendment is withdrawn. I give an undertaking to have a good look at what has been said in the House today on Amendments Nos. 15 and 16, to see whether we can find ground for changing our minds and submitting an Amendment at Third Reading to cover the points raised in those two Amendments.
§ 4.40 p.m.
§ Lord AVEBURY
My Lords, I am extremely grateful to the noble Lord, Lord Jacques, for accepting the spirit of Amendment No. 14 and we look forward to seeing the results of his work on Third Reading. With regard to Amendment No. 16, I am perfectly happy with what he said, and I am quite prepared to accept that, instead of having the "reasonably practicable steps" defined as a separate category and code of practice, which the Commission may issue,after consultation with representatives of employers and trade unions",the suggestion of the noble and learned Lord, Lord Hailsham of Saint Marylebone, might be accepted as an alternative; that is to say, that in subsection (1)(a) where 247 the code of practice relating to the elimination of discrimination is mentioned, that could also be extended to cover the kind of provision which we had in mind in the separate paragraph. If the noble Lord will give consideration to that, as he has already undertaken to do, then I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.42 p.m.
Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 17:
After Clause 47, insert the following new clause:
§ Notice of allegation and other matters.
§ When a person is made the subject of an adverse enquiry by the Commission under this part of the Act he shall be given notice by the Commission containing sufficient particulars and at a sufficient time before the date of his attendance to enable him to prepare his answer, and on the date of his attendance he shall be entitled to bring with him a solicitor, barrister or other friend to assist and advise him, and he or such person shall be entitled to speak on his behalf, and either he or such person shall he entitled to question any witness or produce any evidence or documents which he may consider necessary to support his answer.
§ The noble and learned Lord said: My Lords, this matter arose out of a discussion which we had at the Committee stage and therefore it is so fresh in the mind of the House that I need not elaborate on what was said. A difference of principle arose between the noble Lord, Lord Harris of Greenwich, and myself. We both agreed that a person who is the subject of adverse inquiry should be entitled to natural justice, and I think we both agreed, though I am not seeking to put words into the noble Lord's mouth, that natural justice consisted of two things. One was that adequate notice of the nature of the inquiry should be made with sufficient particulars to enable the person concerned to prepare his answer and to make it at the appropriate time. The second point was that he would be entitled to reinforce his answer by giving evidence himself, by examining any witnesses with whom he was confronted, and by giving any supporting evidence, whether it be documentary evidence or oral evidence.
§ That is what I have sought to include in the Amendment. There were defects in the two Amendments which my noble friend Lady Elles and I put forward at the 248 Committee stage, so I have not attempted to follow the drafting of those Amendments. In particular, the noble Lord, Lord Harris of Greenwich, pointed out that there was an anomaly introduced into one of them by reason of the fact that I had introduced the concept of legal aid which was not appropriate before an industrial tribunal. There was an obvious defect, either of my own penmanship or of the printer, in the wording of my Amendment.
§ Therefore I have started, as it were, from the drawing board again and have tried to include both the previous Amendments in one draft. I am not wedded to my own drafting and experience has taught me humility in this respect. If the noble Lord will only say that he will put into the Bill something of his own, I certainly will not press this to a Division. But if there remains a division of principle between us, as to whether the requirement of natural justice should be in the Act when it becomes an Act, or left out and so trust the Commission, then I would seek to press these Amendments. But as I say, to me the actual drafting is immaterial; the question is one of principle. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, a few minutes ago the noble and learned Lord said that he hoped very much that on, I think he said, a future birthday the draftsman and possibly the Government of the time would celebrate the noble and learned Lord's birthday by agreeing to some form of words that he put forward. Having inadvertently been present with my right honourable friend the Home Secretary recently at a very agreeable occasion to celebrate the noble and learned Lord's birthday, I should like to be in a position today to say that we were able to accept the totality of what the noble and learned Lord is putting forward to the House.
I hope that I will be able to offer him at least half a loaf, and I hope that he might take the view that it is even two-thirds of a loaf. I will, if I may, deploy the argument to see whether I can persuade the noble and learned Lord' that we are prepared to move at least to some extent to meet the point he made when we discussed this matter in Committee, as well as the case he deployed this afternoon. If the House will forgive me for 249 going over the ground—briefly, I hope—of our last discussion, it will create a framework for the discussion we have this afternoon.
There has been a considerable amount of time devoted, both in this House and in another place, to discussing the question of the powers of the new Commission in relation to formal investigations, and this is absolutely right because these are important powers, as the noble and learned Lord said on the last occasion. But it is necessary for us to bear in mind just what an investigation will amount to. Those who have opposed these powers have likened them in some cases—though the noble and learned Lord did not in fact do so this afternoon—to full-blown civil proceedings and have attempted to build into the Bill a variety of procedural devices to limit the scope of the Commission's powers.
The Government, on the other hand, have emphasised that a formal investigation is nothing like civil proceedings; an investigation is the start of the process from which proceedings may conceivably arise. It is the way in which the Commission forms a view on whether action under the legislation is called for. In itself an investigation involves no penalty. Proceedings arise at the end of a fairly lengthy sequence involving the Commission satisfying itself that the person concerned has discriminated, being minded to serve a non-discrimination notice upon him, informing him that it is so minded, and giving him the opportunity to comment. The person concerned then has a right of appeal against the notice, and it is only if the notice becomes final and he commits further contraventions of the Bill that the Commission can institute proceedings for an injunction. Protection for the respondent is thus built into the process before anything to his detriment is done.
It is essential that the rights of people whose actions are under investigation should be safeguarded. The Government have been at pains to point out that the Commission will have to obey the requirements of natural justice in carrying out its investigations—indeed, I spent a fair amount of time saying this myself during the Committee stage—and that if the Commission failed to do this the courts would be prepared to step in. But we have emphasised the need to avoid 250 procedural pitfalls of a kind which might for no good reason invalidate the formal investigations and any ensuing nondiscrimination notices.
I cannot recommend that the House should accept the clause as drafted. It is formulated in a way which is appropriate only for a process involving formal hearings on the lines of a trial. The fact is that formal investigations will not take this form, and I believe that it would be undesirable if they were to do so. It is also not clear just what an adverse inquiry would cover. But in many respects the new clause embodies what we have been saying all along, indeed what I tried to say during our discussion in the Committee stage. It embodies what we have been saying would be the Commission's practice. We did not think that this needed to be spelt out, but since there is a widespread feeling that it should be shown on the face of the Bill we are certainly willing to try to meet the object of the noble and learned Lord.
Therefore, if the Amendment is withdrawn, I would undertake that we would bring forward an Amendment on Third Reading. What we have in mind is an Amendment which would make it clear that in the course of an investigation into the activities of persons named in its terms of reference, the Commission must inform those persons of any act of unlawful discrimination which it thinks they may have committed, and, secondly, requiring the Commission to offer such persons an opportunity to make representations, assisted if they wish by a solicitor, barrister or other suitable person. I think this meets the principle which the noble and learned Lord has in mind, and meets a very substantial amount of the case which he deployed in the House this afternoon.
Corning back to this point again, I take it that by "adverse enquiry" the noble and learned Lord has in mind an investigation into the activities of someone who is suspected of an act of unlawful discrimination. The Government Amendment would reflect the right of such a person to know what action of his is being investigated and to have an opportunity to make representations about it. However, I should not pretend to your Lordships that such an Amendment would reflect every element in the noble 251 and learned Lord's new clause. To take one important example, it does not provide, and would not provide, for formal hearings and a cross-examination of witnesses. This is not, as I have explained, an investigation. The occasion for such a formal proceeding is in the courts and tribunals after the Commission has invoked its powers under the legislation, and not during the process of investigation when it is forming its view on the issue concerned. What we propose would, I think, incorporate the safeguards appropriate at that stage. I hope that the noble and learned Lord will recognise that at least a very substantial element of the case which he deployed in Committee and, indeed, this afternoon has been met. I hope that he will take that view.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, they say that "half a loaf is better than no bread", and certainly experience has taught me the virtue of humility in relation to my own draftsmanship. I would ask the noble Lord, before I proceed further, whether he will not include in his proposed Amendment the right to bring forward evidence in some form in support of whatever the person under investigation may wish to say. It may very well be that he requires to produce documents in support of his case; it may very well he that, although he may not wish formally to call a witness, he will want to produce letters or statements by a witness to support his account of the matter. I would ask the noble Lord either to say now or to consider carefully whether that could not be incorporated in the Amendment. I am grateful for the spirit in which the noble Lord has sought to meet me, and since lie has now agreed on the matter of principle which divided us—that is to say, that the right to natural justice should be incorporated in the Bill—I do not think it would be right for me to divide the House. I therefore ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 48 [Power to obtain information]:
Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 18:
Page 29, line 3, at end insert ("and the County Court Rules Committee shall have power to draft Rules for the making by the Commission of an
application for such an order, and such rules shall provide for the form and service of notice of such application and the time which must elapse between the service of the notice and the hearing of the application and in proceedings in Scotland analogous rules shall be prescribed by Act of Sederunt.").
§ The noble and learned Lord said: My Lords, this matter arose from an Amendment proposed by the noble Lord, Lord Monson, at a slightly earlier stage of the Committee proceedings which I did not think appropriate. This relates to the proposal that attendance should be made compulsory under pain of contempt, and seeks to ensure that the County Court Rules Committee or the appropriate body in Scotland should provide that adequate notice should be given before an application is made, and for the 1/13/2007 of such an application. I am not myself altogether happy—I will be perfectly frank—about the drafting of this Amendment so far as it relates to Scotland; nor am I absolutely certain that it is what I intended to put down. I am not sure that the reference to the Act of Sederunt is appropriate, because my recollection about the Act of Sederunt is that it is limited to the Court of Session and does not apply to lower courts. At any rate, the House will know what I mean, and I shall be interested to know whether the noble Lord can again give me at any rate part of what I am seeking. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, I am glad to say to the noble and learned Lord that the rules of court which he wants to see made are indeed in existence and will apply to applications under Clause 48(4). An application to a county court will be an "originating application" within the meaning of the County Court Rules, Order 6, Rule 4, which regulates the form of such application, for the fixing of a time for the hearing of the application and for serving the application on, and notifying the time of the hearing to, the respondent. Order 8, Rule 8, also applies to such applications. So far as Scotland is concerned, there are provisions in Schedule 1 of the Sheriff Courts (Scotland) Act 1907 which will regulate applications under Clause 48 (4) in a way which is appropriate for the determination of the application by a sheriff court.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, in view of that 253 information, for which I am grateful and which gives me a good deal of comfort, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.55 p.m.
§ Clause 69 [Power to amend certain provisions of Act.]:
§ Lord HAILSHAM of SAINT MARYLEBONE
moved Amendment No. 25:Page 45, line 8, leave out paragraph (a).
§ The noble and learned Lord said: My Lords, this is a substantial matter, and it may be that it gives rise to controversy. May I remind the House that it arises out of a discussion we had in Committee about the powers of the Secretary of State to remodel the Bill when it passes into an Act of Parliament. I promised at that discussion to give the noble Lord his repeal of Section 9, which is the seamen's section, and to give him paragraph (c), which is a provision giving him power to render lawful acts which, apart from the Amendment, would be unlawful. Then, on reflection and with some hesitation as to whether I was right to do so, I gave him paragraph (d) as well, which gives him the right to alter, I suppose up or down, the number of partners or members specified in the provision. I then went through the numerous provisions of paragraph (a). Again, it is very difficult to form an absolutely concluded view about each one of them, but in the end I came to the conclusion that if he wanted to achieve the purposes of paragraph (a), which might very well turn out to be necessary in experience, he must come to Parliament by a Bill and not by a Resolution, because the Resolution procedure, even the Affirmative Resolution procedure, in fact renders the proposal incapable of amendment and must be either taken as a whole or rejected as a whole.
§ The noble Lord, except for his references to the Sex Discrimination Act, about which we have now agreed to differ, I hope for the last time, could provide absolutely no precedent for giving to the Secretary of State by Statutory Order what is in effect the power to take away what are virtually all the safeguards and exceptions in an Act of Parliament. I must say frankly that my views about 254 this Bill, which I have expressed more than once and will not reiterate now, are broadly those expressed earlier this afternoon by the noble Lord, Lord Houghton of Sowerby. I think the Government have over-egged this omelette and the result will be counterproductive; but I feel quite certain that where Parliament, after careful debate, has introduced safeguards into a Bill, in so far as it has safeguards, the Secretary of State should not have carte blanche to remove them all as a matter of fact by one Order in Council which cannot be amended. Unless the Government can really give me some comfort about this—and rather more this time than half a loaf—then we shall have to take the opinion of the House on it. On the other hand, I do not want to belabour the noble Lord. I am sure his intentions are excellent, but so are mine; these are to preserve the supremacy of Parliament over Ministers.
§ Lord HARRIS of GREENWICH
My Lords, let me begin by agreeing with the noble and learned Lord on two points. First, that this is a substantial matter and, secondly, that his intentions are excellent. I would not in any way doubt that; although I regret to say that we differ on this point this afternoon as we did during our discussion at Committee stage. As the House will recall, we had quite a long discussion on this particular clause when in Committee and I do not want to weary your Lordships by going over the whole of the argument again. However, I should like to make one or two points in response to what the noble and learned Lord has said.
First, I would accept that the scope of the power in Clause 69 is wide. We agree about that. However, it is not unlimited. It only permits Amendments to existing exceptions or to create new exceptions to the principal non-discrimination requirements in the Bill. I think that this is a significant limitation of powers, but I accept that, leaving aside the precedent of the Sex Discrimination Act, a power with such wide scope is undoubtedly unusual.
I accept certainly that it is incumbent upon the Government to show that powers of this sort are justifiable before they are allowed to pass. I believe that power of this sort is justifiable in the context of anti-discrimination legislation. Such 255 legislation is, in my view, a special case and I rather think the debates which have taken place in your Lordships' House and in another place in 1965 and 1968 on the then Race Relations Bills, last year on the Sex Discrimination Act, and this year on this present Bill, bear this out. It is extremely difficult to deal satisfactorily with the problem of discrimination, which, as Part I of the Bill shows, is not a simple concept, especially over such a wide area of human activity: in employment, training and related matters, in education, in housing, and in the generality of goods, services and facilities. Some will say of course that we should not even attempt to do this, but I do not think this is the majority view of the House. We have tried in this Bill to deal with the problem comprehensively because we believe it should be tackled in this way.
Comprehensive legislation does not mean pressing the abstract principle of non-discrimination in all contexts. Appropriate exceptions must be provided. This we have endeavoured to do in the context of this Bill; and that was true of last year's debate on the Sex Discrimination Bill. But we cannot be sure how the exceptions will stand up over the coming years. What we are saying in Clause 69 is that Parliament should be able, on the recommendation of the Secretary of State (after consultation with the new Commission) to alter the exceptions should it prove necessary to do so. The Amendment would prevent us, should the need arise, from amending, for example, Clause 5, which seems to me to be one of the more likely candidates for change in years to come; or Clause 33, the special needs exception, which has already been the subject of some discussion in your Lordships' House, particularly on the question of whether it is too wide or too narrow.
It may be said—and indeed it has been said by the noble and learned Lord this afternoon—that should such a situation arise new legislation should promptly be brought forward; but your Lordships know only too well that it is very difficult to find Parliamentary time for Bills of this kind, particularly when they may apply to a particularly narrow issue in one particular area. This problem is, I 256 think, a fact of Parliamentary life and one that we have to accept.
If we do not provide for amendment by way of Affirmative Resolution procedure (which is provided for in this clause) we shall be confronting Parliament with the prospect of having to put up with what I think could be a profoundly unsatisfactory situation in a particular area; particularly, as I have indicated an area where it may be a significant problem has arisen and clearly there is need for amendment, but because the issue is a narrow one it is particularly difficult for the Government to take action although it is recognised on all sides that some form of amendment is necessary.
The procedure which is laid down in this clause meets this point. There is still Parliamentary control as far as the Affirmative Resolution procedure is concerned for it will have to be carried by both Houses of Parliament. That is a safeguard. I recognise that this is a major new power being conferred on the Government. Nevertheless, in the circumstances that I have outlined, I think that it is not an unreasonable one.
§ Baroness SEEAR
My Lords, I believe that the argument put forward plausibly and persuasively, as is his wont, by the noble Lord, Lord Harris, is an extremely dangerous and unacceptable one. He has said that the Government have a very great deal of legislation and will continue to have a great deal of legislation. Some of us consider that the Government are putting forward a great deal too much legislation and that less legislation would mean better legislation. We are asked to accept that the Government have to have a great deal of legislation—which many of us do not accept.
The noble Lord then goes on to say on the basis of what is a false assumption, that we have to put up with the consequences of this, in our view, undesirable activity on the part of the Government and increase the power of the Executive over the Legislative. In the first place, we do not accept that it is necessary to have so much legislation; and if we do not have to have it, we are not prepared, many of us, to follow through and say that this means for this reason the Government ought to have greater powers than at present over Parliament. On the contrary, it should be the other way 257 round. When there is so much legislation the power of Parliament over the Government should be greater and not less.
§ Lord SANDFORD
Furthermore, my Lords, those of your Lordships who were here last week dealing with the Education Bill will readily recognise that what the noble Lord, Lord Harris, has said is entirely inconsistent with what the noble Lord, Lord Donaldson of Kingsbridge, was saying about the Education Bill. The Government cannot possibly have it both ways.
§ Lord HOUGHTON of SOWERBY
My Lords, I think this kind of provision would be more acceptable if the provisions for the laying of orders and dealing with them in both Houses of Parliament were more satisfactory. I think that the mischief of powers given to the Government to lay orders for approval by both Houses of Parliament is that they are not subject to amendment. You swallow them whole or you reject them. Our experience tells us that attempts to get variations in orders very rarely succeed. They have been drafted behind the scenes, consultations have taken place, as the Bill requires the Government to do before they lay any orders of this kind, but attempts to amend them have usually been fruitless.
I think that this question of devolved legislation requires consideration in connection with the more general review of the procedures of Parliament. I think that the whole process of a Bill to become an Act is a lengthy one, especially when it is dealing with matters of relative detail, or attempts to relieve difficult situations which have arisen in a particular area, hardly justifying the full procedure of a Bill before both Houses of Parliament. Yet this clause permits the Government to lay draft orders on matters which may have been the subject of detailed discussion in the Committee and Report stages, and in this House at the Third Reading stage of a Bill.
We have gone into these matters in great detail. We have tried to anticipate the difficulties that may arise in particular areas. We have tried to examine whether exceptions and provisions will stand up. This is really part of the process of wise legislation properly scrutinised in your 258 Lordships' House. Then, when we have done all that—and we have had an example of that this afternoon—when there has been refinement of words and of intention in order to try and get the Bill right, the Secretary of State after a short period of experience says, "I must put this right; I must put that right". Of course, there are other Bills in which Ministers would like to put their mistakes right, but are we always going to do it this way? If mistakes have to be put right then the putting of them right should be subject to as much scrutiny as the original proposals, even though we were to find some procedure less lengthy than the full range of first, second, Committee and Report stages and Third Reading of a Bill.
That is why I hesitate to accede to the request in Clause 69 to give these really sweeping powers. When one looks at the clauses that can he amended it is clear that, as the noble and learned Lord, Lord Hailsham, said, these are the safeguards, these are the exceptions, these are the things which make the Bill acceptable in some quarters; these are the provisions that stop the proposers of the Bill trespassing too far upon other principles and other civil liberties. There is a balance here all the time. We do not exist in this country solely for the purpose of making it comfortable for others to live here. We live here ourselves and have a right to liberties and our own way of dealing with human relationships. We have to harmonise the rights of those who are here with the rights of those who have come and are now living here. Let us be honest about this. So I always feel that we are justified in reserving to ourselves something of the concept of freedom of speech, freedom of relationship between individuals which we have built up over the years. Therefore I think that we should look with close attention at proposals which enable the Government to nibble away here and nibble away there, and alter here and change there, without full discussion in Parliament.
If this Amendment is put to the vote I shall support its rejection, not because I am anxious to put difficulties in the way of any Government in amending the nondiscrimination law to meet new conditions or loopholes or difficulties which have arisen, but because I believe that it is now desirable, many years after a Lord Chief Justice wrote on the new despotism, to 259 get a little more satisfactory the way in which the Executive may get changes of the law through both Houses of Parliament, a procedure which is less satisfactory than the opportunities which full legislation gives to both Houses.
§ 5.14 p.m.
§ Lord PARGITER
My Lords, there is just one small point I should like to make and I think it is a safeguard. The Secretary of State has the power to amend subject to an order and subject to approval. He has no power to remove anything from these clauses. I think it is rather important: if you cannot remove something, you want to amend it. It seems to me that there is a fairly considerable safeguard there. If the Secretary of State did not like something he might say he would move to take it out, but I do not think he could do that under any circumstances; he could only amend. In other words, he can look at a particular section of the Act and move the amendment of it in the light of experience, and so on, which he puts in the form of a Motion to the House. It seems to me in those circumstances to be not unreasonable that the Secretary of State should be able to do that.
§ Lord AVEBURY
My Lords, may I add just one word to this discussion in order to endorse everything that my noble friend said. It is not very often during the course of proceedings on this Bill that I have found myself in agreement with the noble and learned Lord, Lord Hailsham. Here we are not dealing with an Amendment which weakens any of the anti-discrimination provisions of the Bill but we are, I suggest to your Lordships, introducing a fundamental Parliamentary innovation which should not be done sideways as part of the proceedings on a Bill which does not give the fullest possible opportunity for discussing the principles of that innovation quite separately from the issues to which it happens to be related in the Bill. That is my objection to Clause 69(1) as a whole, and I am only afraid that in deleting paragraph (a) we are allowing the principle to slip through, so that on future occasions Governments will be able to say that Parliament did incorporate provisions amending the Bill in this Bill and therefore the precedent 260 has been established for all future occasions.
At the same time I see the difficulty in which the noble and learned Lord was placed. Everybody, for instance, wants to see the amendment or repeal of Section 9 as contained in paragraph (b) kept in force because of the discussions that have taken place on the issue of seamen. So in a way we cannot have the ideal situation, dealing with the position of the seamen, and yet not introducing what is, I am afraid, a rather dangerous constitutional innovation. In this position the only thing we can do is to register our opposition to such an extension of the powers of the Executive by voting on paragraph (a), and hoping that whenever this matter comes up in future legislation the Government will not be able to use it as a powerful argument in pushing through amending provisions within a Bill itself. I think that really would be highly undesirable and if we do not take a stand and resist this now we may find ourselves in a similar position on all sorts of future legislation. Always this argument will be produced that my noble friend fastened on, that we have so much legislation of great importance to the nation that we must incorporate these provisions in orders.
I agree wholeheartedly with my noble friend. I think we have far too much legislation going through both Houses at the moment. The way in which the Government are forcing through so many Bills just at this moment is absolutely appalling and I think it is an insult to your Lordships to bring this argument before us, that we have so much valuable legislation that we need to make space by giving subordinate powers to Ministers. On any other occasion, I suggest, we should have been wise to scrutinise that argument carefully, but this is not the moment, I suggest to your Lordships, for that point to be put and to convince the House, and we should reject it now.
§ Lord MONSON
My Lords, Amendments Nos. 25 and 29 are identical to ones I moved in Committee and I do not propose to go through again all the arguments that I then advanced, but I should like to put just one point to the noble Lord, Lord Harris of Greenwich. The Government must surely realise that the man in the street has got to be won over to this very wide-ranging and, in many respects, 261 draconian Bill if it is to have any chance of widespread public acceptance. I do not believe that he will be so reconciled once he suspects that it is the Government's intention to chip away, little by little, all the safeguards and exceptions that have been granted in the Bill as it stands. I therefore very much hope that this Amendment will be accepted.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I agree so wholeheartedly with almost everything that has been said, with the exception of the brief intervention from the noble Lord, Lord Pargiter, that I really am, I think, exonerated from making a long speech in reply. It really is precisely because of the precedent point made by the noble Lord, Lord Avebury, that I feel that we have got to call a halt here, because I am sure that if we do not it will be cited as a precedent in case after case until it becomes almost a convention of Parliament that all the Bills introduced by a Government should contain a widespread provision of this kind.
I totally agree with the noble Baroness, Lady Seear, when she says that for this Government or any Government—and I have been on the other side, too—to put forward the argument of the absence of Parliamentary time, which the noble Lord put forward (I suppose for want of a better argument) is really not good enough.
§ Governments can get Parliamentary time by not passing, as they did in 1975, three volumes of Statutes of 1,000 pages each, coupled with 10,000 pages of subordinate legislation.
§ It is not possible for Governments with this volume of legislation going through Parliament—much of it of a highly controversial nature and much of it under the guillotine—to say that they ought to take to themselves a power in effect to remove all the safeguards out of an Act of Parliament. I respectfully agree with what the noble Lord, Lord Houghton of Sowerby, said: that there may be in future some way of amending things of a subordinate character which does not face one with the alternative of a Bill or order which cannot be amended. That remains in the womb of the future, if it ever comes to birth at all. So far as I am concerned, I have gone out of my way to give the Government three-quarters of a loaf of bread. I am afraid I must ask them now to lose the remaining quarter and I therefore call upon my noble friends to press this Amendment.
§ 5.22 p.m.
§ On Question, Whether the said Amendment (No. 25) shall he agreed to?
§ Their Lordships divided: Contents, 121; Not-Contents, 58.263
|Alport, L.||Davidson, V.||Hives, L.|
|Amherst of Hackney, L.||de Clifford, L.||Hornsby-Smith, B.|
|Amory, V.||Denham, L. [Teller.]||Houghton of Sowerby, L.|
|Ampthill, L.||Deramore, L.||Hylton-Foster, B.|
|Armstrong, L.||Derwent, L.||Ilchester, E.|
|Arran, E.||Dundee, E.||Jessel, L.|
|Auckland, L.||Ebbisham, L.||Killearn, L.|
|Avebury, L.||Elles, B.||Kings Norton, L.|
|Balerno, L.||Elliot of Harwood, B.||Kinloss, Ly.|
|Banks, L.||Elton, L.||Kinnaird, L.|
|Barnby, L.||Emmet of Amberley, B.||Lauderdale, E.|
|Beaumont of Whitley, L.||Enniskillen, E.||Lindsey and Abingdon, E.|
|Belstead, L.||Exeter, M.||Lloyd, L.|
|Berkeley, B.||Fraser of Kilmorack, L.||Lloyd of Hampstead, L.|
|Birdwood, L.||Gage, V.||Lloyd of Kilgerran, L.|
|Byers, L.||Gisborough, L.||Long, V.|
|Caccia, L.||Gladwyn, L.||Loudoun, C.|
|Campbell of Croy, L.||Glasgow, E.||Lyell, L.|
|Carr of Hadley, L.||Glendevon, L.||Mancroft, L.|
|Carrington, L.||Gowrie, E.||Marley, L.|
|Clifford of Chudleigh, L.||Gray, L.||Merrivale, L.|
|Clitheroe, L.||Hailsham of Saint Marylebone, L.||Meston, L.|
|Cork and Orrery, E.||Hale, L.||Monck, V.|
|Cottesloe, L.||Halsbury, E.||Monson, L.|
|Cromartie, E.||Harcourt, V.||Morris, L.|
|Cullen of Ashbourne, L.||Harmar-Nicholls, L.||Mottistone, L.|
|Daventry, V.||Hawke, L.|
|Mowbray and Stourton, L. [Teller.]||St. Aldwyn, E.||Strathcona and Mount Royal, L.|
|St. Davids, V.||Strathspey, L.|
|Newall, L.||Sandford, L.||Tanlaw, L.|
|Northchurch, B.||Sandys, L.||Terrington, L.|
|Onslow, E.||Seear, B.||Teviot, L.|
|Orr-Ewing, L.||Selkirk, E.||Teynham, L.|
|Platt, L.||Sempill, Ly.||Tranmire, L.|
|Porritt, L.||Sharples, B.||Trefgarne, L.|
|Rathcreedan, L.||Simon, V.||Vernon, L.|
|Redesdale, L.||Somers, L.||Vickers, B.|
|Reigate, L.||Stamp, L.||Vivian, L.|
|Roberthall, L.||Stow Hill, L.||Ward of North Tyneside, B.|
|Rochdale, V.||Strang, L.||Wigoder, L.|
|Ruthven of Freeland, Ly.||Strathclyde, L.||Wolverton, L.|
|Aylestone, L.||Jacques, L.||Pitt of Hampstead, L.|
|Birk,B.||Janner, E.||Ponsonby of Shulbrede, L.|
|Blyton, L.||Kaldor, L.||Raglan, L.|
|Boston of Faversham, L.||Kirkhill, L.||Ritchie-Calder, L.|
|Brimelow, L.||Leatherland, L.||Rusholme, L.|
|Brockway, L.||Llewelyn-Davies of Hastoe, B.||Sainsbury, L.|
|Champion, L.||Longford, E.||Segal, L.|
|Chorley, L.||Lovell-Davis, L.||Shinwell, L.|
|Cooper of Stockton Heath, L.||Lyons of Brighton, L.||Slater, L.|
|Davies of Leek, L.||McCluskey, L.||Snow, L.|
|Davies of Penrhys, L.||Maelor, L.||Stedman, B. [Teller.]|
|Delacourt-Smith of Alteryn, B.||Mais, L.||Stone, L.|
|Donaldson of Kingsbridge, L.||Melchett, L.||Strabolgi, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Oram, L. [Teller.]||Taylor of Mansfield, L.|
|Energlyn, L.||Pannell, L.||Wells-Pestell, L.|
|Evans of Hungershall, L.||Pargiter, L.||Willis, L.|
|Goronwy-Roberts, L.||Parry, L.||Wilson of High Wray, L.|
|Harris of Greenwich, L.||Peart, L. (Lord Privy Seal.)||Winterbottom, L.|
|Henderson, L.||Phillips, B.||Wynne-Jones, L.|
On Question, Motion agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 5.32 p.m.
Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 28:
Page 45, line l6, leave out ("24 or 25") and insert ("or 24").
§ The noble and learned Lord said: My Lords, Amendment No. 28 is simply a technical Amendment. I beg to move.
§ The CHAIRMAN of COMMITTEES (The Earl of Listowel)
My Lords, before I call Amendment No. 29, I should point out to the House that if this Amendment is agreed to, I cannot call Amendment No. 30.
Lord HAILSHAM of SAINT MARYLEBONE had given Notice of his intention to move Amendment No. 29:
Page 45, line 17, leave out paragraph (d).
§ The noble and learned Lord said: My Lords, I said perhaps wrongly—but I did so and I shall stick to it—that I would 264 not insist on Amendment No. 29. I am very doubtful whether I was right. But, having said that, I shall stick to it. Therefore I do not move this Amendment.
Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 30:
Page 45, line 17, leave out ("or 25(1)(a)").
§ The noble and learned Lord said: My Lords, I think this is a technical Amendment. I beg to move.
§ Clause 76 [Short title and extent]:
§ 5.30 p.m.
Lord WELLS-PESTELL moved Amendment No. 31:
Page 52, line 15, leave out ("Community") and insert ("Race").
§ The noble Lord said: My Lords, this Amendment is to restore the original Title of the Bill following its change to Community Relations Bill as a result of one of a series of Amendments which were tabled by the noble Baroness, Lady 265 Vickers, to change the title of the new Commission to "Community Relations Commission". On that occasion the noble Baroness had quite a substantial victory in changing the Title and what I want to do now is to ask the House to put it back to what it was originally. I hope that I can give your Lordships good and sufficient reasons for asking you to do that.
§ What I am seeking to do is to suggest to your Lordships that it would be wrong to draw the concluson that calling the new Commission the "Community Relations Commission" means that the Bill itself should be called the Community Relations Bill. It is perfectly true that in Committee we did not specifically discuss this aspect of the proposals made by the noble Baroness, and I feel I ought to say to your Lordships that it was entirely my fault. I was going to do so, but had to leave the Chamber for a while; and I got back too late. That is why the Government expressed no opinion at that time.
§ The new Commission, with its powers and duties, forms an important part of the Bill. The responsibility for local community relations councils, to which the noble Baroness appealed in justification for calling the Commission the "Community Relations Commission" is, however, only one aspect of the legislation. The greater part of this Bill—and, if I may say so, it is no good running away from it—is concerned with racial discrimination. This is a race relations Bill, out of which will be born a new Commission, the Community Relations Commission.
§ The Bill itself is about race relations. I accept that it is invidious to base distinctions between people on the grounds of their race. I do not think many of us like it at all, but the fact is that in all matters of this kind one has to do so. Racial discrimination is a real and important problem. It is what this Bill is all about and that is the reason for needing this legislation. Inevitably, the Bill must be full of references to race. It could not tackle the problem of racial discrimination if that were not so.
§ The Government do not believe that the Bill—and I must stress that I am talking only about the Bill and not about the title of the Commission which the 266 noble Baroness succeeded in persuading your Lordships that it was right and proper to change—should have the Title of Community Relations Bill. We do not think that will do. "Community relations" may well find favour in emphasising the object of social cohesion. Harmony is our objective and justice is our object: a whole variety of things are our object. But the Bill seeks to remove the invidious distinctions based on race which cause disharmony. If I may say so without being misunderstood, I do not see that it helps to gloss over this issue in the Title we choose for the Bill itself. Let us be frank and honest about it and say: "This is the right Title for the Bill, even though your Lordships have decided to change the title of the Commission for Racial Equality." As the Bill is about race relations, the Government feel—and I must say it appears quite reasonable—that we should face up to that and not run away from it. We are trying to do everything to put right race relations. Therefore, let the Bill bear that name, although the Commission may well have another name. My Lords, I beg to move.
My Lords, first I accept what the noble Lord said about having missed the bus and not having arrived in the Chamber in time; and of course I was rather astonished at being allowed to get this Amendment through "on the nod". I was also rather surprised to see this particular Amendment No. 31 on the Marshalled List, because no one had had the courtesy to mention it to me. It is, after all, quite easy to miss something on the Marchalled List and I would have thought, considering that my Amendment had gone through without any hesitation or demur from anyone, that I might have been given a note of some sort to say that it was now intended to change it.
I should like to express my thanks at this stage to the noble Lord, Lord Jacques, for the many points he has answered in respect of this Bill and which has saved my putting down other Amendments. I am sorry that the Title will not be accepted, because I notice that in the proceedings in another place on 1st July, 1976 reference was made to the need to change the emphasis on the name, and I thought we were getting away from the emphasis on 267 race. Keeping this word, "race" is like having a running sore: it is exactly what we want to get away from. We are a community in this House, although we are of several different races. There have been noble Lords of different races in this House, and different races in the House of Commons, but we are a community. We do not think of ourselves as racialist at all. I was very grateful when the other name was changed to the Race Relations Commission but I was deeply disappointed when this was changed too. I am very anxious to get away from the word "race".
Mention was made in the previous debate by the noble Lord, Lord Avebury, of the understanding of this Bill, but what I want is for the general public to understand what it is about. I am sure the general public are anxious that community relations should become stronger. I think most noble Lords in this House wish that, too. When we are told that at least two out of every five people born in this country are of different races, we want each of them to think right from the beginning that he is one of us, not one of another race, because this is the only way, as mentioned by the noble Lord, that we are going to get harmony in the future. Therefore, I feel strongly that we ought to try to keep this name.
When we think about different races coming to live in this country we realise that we are becoming more and more a multiracial society, but we want to get a community relationship and not a racial relationship. This is going to be extremely difficult. We are going to harp on it all the time. It is not so much for the noble Lords who have to implement the Bill in the House but for the general public, who need to understand how we are going to improve community relations. I therefore hope I may get some support from other people in this House. I should like to know their views, because I deeply regret that this name has been changed.
The other day in a debate, I mentioned that when I fought Poplar my opponent was called Mr. Guy, and they even trained the children to go around saying, "Vote, vote, vote for Mr. Guy! Swipe Joan Vickers in the eye!". I feel I am getting a swipe tonight, and I hope the noble Lord might change his mind. He cannot, anyhow, 268 refer to the question of reprinting. This Bill has been reprinted as the Community Relations Bill and it is definitely stated on the top "Race Relations Bill, now Community Relations Bill". I do not know whether the noble Lord has, but I have a number of letters and messages from people stating that they are very pleased at the change of the name, and I hope that today we shall be able to keep something which I think is going to be worth-while to the general public.
§ 5.43 p.m.
Lord DE CLIFFORD
My Lords, may I support my noble friend, Lady Vickers, in this matter? I feel that the Government have rather the wrong approach to this question. This is a matter which we have to sell to people who are living in closely knit communities throughout the country. We are not talking so much about individual races as about how they are to live in their communities, and one of the things which I feel has been missed in this Bill all the way through is the fact that we are talking about people who live in communities. The moment you put the word "race" in you immediately establish a polarisation. One thing which we do not want to do in this country is to polarise races, and, my Lords, we come down to the fact that we shall have a Race Relations Bill as a Statute and then we shall start on devolution. We are establishing race relations, not only with the people who have come into this country but also with the people who are here already. I support my noble friend most strongly on this matter. We are trying to establish community relations. Please do not let us hinder things with race relations and get our efforts off to a poor start.
§ 5.45 p.m.
Baroness WARD of NORTH TYNESIDE
My Lords, I also should like to support my noble friend Lady Vickers. I listened to the last debate and it appeared to be very acceptable, except to the Government. One understands the difficulties of a Government when the Minister does not happen to be available, but I should have thought that somebody might have rushed out and said, "Can you come in and listen to the arguments that are being put forward?" Fortunately, though we have many very 269 grievous and difficult problems up in my part of the world, at any rate we do not really have these problems at all. We have people coming in in ships. We have many families from all over the world who are connected with shipping. The children go to schools. They are very welcome indeed. If I went up there and talked to them I am sure I should be told that they like being felt to be part of the community. It does not occur to any people in my part of the world that there is a race problem at all. It gives me great pleasure to be able to say that, because I always seem to have to be fighting for the part of the world which I have the honour to represent, and have had the honour to represent for so many years.
We are a community and we are very proud of it and nobody would ever dream of saying to anybody else in my part of the world that he was not a member of a community. It is a very happy relationship. Although I myself am not at all experienced in these matters because, as I say, the problem has not arisen, fortunately, in my part of the world, from all that one heard after my noble friend's Amendment was accepted in the last debate, one thought that most people considered it a marvellous speech and a marvellous suggestion; and I take pleasure in saying that. There cannot be many people in this House, unless they have been connected in official capacities as Secretaries of State or Ministers or something, who know as much about this matter as my noble friend and others of us who have tried to do what we can for the people who come over here or for people all over the world, because she has a very great knowledge indeed. Although I like to consider that I am a very loyal supporter of my own Party, and I usually am on general principles, I sometimes think that people forget to take advice or to discuss with others who have detailed knowledge. Sometimes policies stem from very worthwhile people, but they have not really gone into all the details of life, of industry or whatever it may be.
I am delighted to have this opportunity of supporting my noble friend and I hope there will be a Division, when I shall enjoy supporting her in the Division. If we do not have a Division, I am looking forward to going back to the North of England and telling them that our efforts 270 at community and friendship and good relations did not seem to commend themselves, perhaps, either to some of my own side or, certainly, the Government side. It all seems to me very odd indeed. I am not really qualified to talk about these matters, although I have travelled in every country of the world except Japan, which perhaps gives me a bit of knowledge. I believe that the ordinary public want to think that community matters; that we want to get a friendly and happy relationship. So what on earth has bitten the Government, and perhaps some of my own side, I really do not know. But, having been about for more years than I care to remember, I think I am right in saying that sometimes one wonders what people do think and why they vote one way or vote another, or why policies develop in one way or another. I have the greatest possible pleasure in supporting my noble friend and, considering that she had such a success, I hope that we may be able to get back to "Community" rather than "Race".
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I hope I may be allowed to say something and I hope my noble friends will forgive me for saying it if they slightly resent what I am going to say. The first thing is that if I thought by saying it or by the Government having put down this Amendment on Report, they intended to give or I was going to give my noble friend Lady Vickers, a blow in the eye—I forget the actual phrase she used—I certainly would not be going to say what I am going to say. I am sure it was not the intention of the Government to do that, nor is it mine. On the contrary, we have fought together, she and I, on numerous issues, I suppose, for the best part of 20 or 30 years, and in the case of my noble friend Lady Ward of Tyneside, the distance of time which has spelt our alliance on many bloody fields of political battle, extends further back than that.
But in the first place I must say that I felt great sympathy for the noble Lord, Lord Wells-Pestell. He came to this House very honestly and he said very frankly that he had failed to spot in time that this was not a consequential Amendment on the other success which my noble friend gained. Although she did so without active support, she gained a very 271 notable success on the name of the Commission. I do not think it follows at all that, because she has changed the name of the Commission successfully, it is simply consequential that she should change the name of the Bill. That is quite a different question to which rather different considerations apply. Although I am sorry, of course, on her behalf that she did not receive a note of warning from the noble Lord, Lord Wells-Pestell, I am sure that he did not mean any discourtesy to her and would like to express his regret when he comes to reply for having failed, even inadvertently, to tell her.
I have tried in the course of this series of debates to confine my opposition to the Government to matters of what I regard as principle. If I had not done so, I would have changed a very great deal in the Bill because there is a very great deal in the Bill I do not agree with. But I laid down at the outset, when I put down a series of Amendments in Committee, that I would confine myself to four main points, all of them of principle.
Whatever else this name question may be, it is not a question of principle, with great respect; it is a question of opinion. I daresay that if I were to express an opinion I should be slightly more inclined to agree with my noble friend than with the Government, but it is not a question of principle and I am very much afraid that, when we come to send our Amendments down to another place, when the Bill came down, if it did come down with another name attached to it, people would be saying that it was in a sense a factious opposition on the part of the House of Lords, imposing their judgment on matters which are essentially matters of judgment rather than matters of principle. So far in almost every case, and in every case when my Party has divided as a Party, we have had something to say on a matter of principle, and I would hope that we would stick to that.
On this question of name, I have always taken the view that the sponsors of the Bill ought prima facie to have the right of christening it so far as regards the Short Title. I have often had to interfere with the Long Title to a Bill—either trying to curtail it or to extend it—but so far as 272 regards the Short Title, it is for the parents of the child to give it its name and as I do not particularly like the brat I am very reluctant to impose a name upon it. I feel that its sponsors ought to be responsible for its christening and those who issue maledictions, even as mild as my own, ought to keep respectfully away from the baptism. That is what I would ask my noble friend to do on second thoughts. I hope she would not press this matter to a Division. She has had a very considerable and conspicuous triumph on the question of the name of the subordinate body, but I feel she might gain the reputation for perhaps being a little unchivalrous to the Government if she pressed this matter on this Amendment. I hope she does not feel too strongly about what I am saying.
§ A noble Lord: Somebody might even call her "the Godmother".
§ Lord HAILSHAM of SAINT MARYLEBONE
That I do not think she would wish to be, though I can imagine no better Godmother either for anything or anybody than my noble friend Lady Vickers. But I am very anxious not to appear to be ungenerous to the Government simply because I am opposed to them on a variety of different issues on this piece of legislation. I hope, therefore, that even if she does not wholly agree with what I am saying—and she very likely will not—my noble friend will feel there is a certain grey area in which discretion takes the better part of valour. I do not feel that any principle is involved and I rather hope that she will not press this to a Division.
§ Lord WELLS-PESTELL
My Lords, I was beginning to regret that I had admitted appearing before you in a white sheet, but I know your Lordships will accept what I am going to say now. I made some notes while certain things were happening—not while the noble and learned Lord was speaking—so what I am saying I intended to say before the noble and learned Lord spoke. I do not want to go over what the noble and learned Lord said. It is perfectly true that this Amendment went through because it was considered to be a consequential Amendment. My recollection is that there was no discussion about it at all. All I have got up to say, however, is that it was my 273 intention to say to the noble Baroness, whom I have known for a good many years, too, that no discourtesy was intended. If I was discourteous in not sending her a note—on reflection I wish I had done so, but there are only a few of us on this Front Bench and we are working at tremendous pressure; we may not be doing it very well, nevertheless we are working and there is a good deal of correspondence which had to be sent to members arising out of the Committee stage—I want to say quite frankly that I did not intend any discourtesy and I should like to apologise to her.
§ 6.2 p.m.
§ Schedule 1 [The Community Relations Commission]:
§ Lord WELLS-PESTELL moved Amendment No. 32:
Page 55, line 18, leave out from ("Commission") to end of line 19 and insert—
("9A. —(1) In this paragraph—
the new Commission" means the Community Relations Commission;
present Commission employee" means a person who immediately before the repeal date is employed by the Community Relations Commission established by section 25 of the Race Relations Act 1968;
private pension scheme" means a scheme for the payment of pensions, allowances or gratuities other than one made under section 1 of the Superannuation Act 1972;
the repeal date" means the date on which the repeal of the Race Relations Act 1968 by this Act takes effect.
§ (2) If a present Commission employee enters the employment of the new Commission on the repeal date and on so doing elects to be covered for his service in that employment by a private pension scheme in which he was a participant in respect of his service in the employment of the Community Relations Commission established as aforesaid, the new Commission may make such payments towards the provision of benefits to or in respect of him under that scheme (or any other private pension scheme replacing it) as may be determined by the new Commission with the consent of the Secretary of State given with the approval of the Minister for the Civil Service; and it shall be the duty of the new Commission and those Ministers in the exercise of their functions under this subparagraph to ensure that his rights under the scheme do not become less advantageous than they were when he entered the employment of the new Commission.
§ (3) Where a person who is employed by the new Commission and is in respect of that 274 employment a participant in a private pension scheme becomes a Commissioner or an additional Commissioner, his service as a Commissioner or additional Commissioner may be treated for the purposes of the scheme as service as an employee of the new Commission.").>
§ The noble Lord said: My Lords, I beg to move Amendment No. 32. This Amendment will make it possible for an employee of the Community Relations Commission to continue his present pension arrangements when he is employed by the new Commission. Schedule 1 to the Bill provides that staff of the new Commission shall be treated as civil servants for pension purposes. Staff of the Race Relations Board are similarly treated now, and when they join the new Commission their membership of the principal civil service pension scheme will continue. Normally staff with other pension arrangements joining the new Commission for employment would be expected to transfer or freeze their existing rights and join the civil service scheme. In some cases this might mean less advantageous terms, and since the Government's intention is that any offer to existing staff of employment in the new Commission should be on terms which, taken as a whole, are not less favourable than the terms of their existing employment, we have considered it right to make available this option. I beg to move Amendment No. 32.
§ Lord SANDFORD
My Lords, we certainly agree that this is a sensible addition to the provisions already made in Schedule 1.
Lord WELLS-PESTELL moved Amendment No. 33:
Page 56, line 3, leave out ("or 8") and insert (", 8 or 9A").
§ The noble Lord said: My Lords, this is purely a drafting Amendment and it is consequential upon Amendment No. 32 which your Lordships have just passed. I beg to move.