HL Deb 10 November 1998 vol 594 cc708-17

(".—(1) The Commission may conduct such investigations as it considers appropriate to determine whether a breach of—

  1. (a) the Human Rights Act 1998, or
  2. (b) section 72 or 73 of this Act,
has occurred or may occur.

(2) Where the Commission proposes to conduct an investigation under this section, it shall publicise the fact and shall afford an opportunity to those with sufficient interest to comment on the desirability of conducting such an investigation.

(3) The Commission may require any person who in its opinion is able to furnish information or produce documents necessary to the investigation to furnish any such information or produce any such documents.

(4) For the purposes of an investigation the Commission shall have the same powers as the Court in respect of—

  1. (a) the attendance and examination of witnesses, and
  2. (b) the production of documents.

(5) If any person without lawful excuse obstructs the Commission or any officer of the Commission in the performance of its or his functions under this section, or is guilty of any act or omission in relation to any investigation under this section which, if that investigation were a proceeding in the Court, would constitute contempt of court, the Commission may certify the offence to the Court.

(6) Where an offence is certified under subsection (5), the Court may inquire into the matter and deal with the person referred to in that subsection in any manner in which the Court could deal with him if he had committed the like offence in relation to the Court.

(7) If, after conducting an investigation under this section, it appears to the Commission appropriate, it may lay a special report before each House of Parliament and the Assembly.

(8) In this section "Court" means the High Court in Northern Ireland.").

The noble Lord said: My Lords, Amendment No. 133 has also been grouped with this amendment. I referred earlier to the human rights commission not having sufficient tools to do its job, especially during the first two years. That is why I have tabled Amendment No. 95. However, there is a change in the text in subsection (3) where the word "necessary" is substituted for "relevant", which was used in the Committee stage amendment. I am advised that that narrows a little the scope of the new amendment.

I should also like to point out to the House that the investigations which my amendment would allow are strictly limited to breaches under the Human Rights Act and under Clauses 72 and 73, which deal with discrimination and illegal oaths. My feeling is that Clause 65(8) is fine as far as it goes, but its weakness lies in its not having the machinery for enforcement to deal with people who may be totally unco-operative when it comes to an investigation of their behaviour. That is why I have provided for the furnishing of information, the production of documents and indeed for the compelling of the attendance of witnesses.

I turn now to Amendment No. 133. I tabled that amendment because it was pointed out to me during the last stage of the Bill that there was no cross-party or cross-community agreement as to the making of investigations with compulsory powers. That is why I have provided that the Assembly must agree, with cross-community support, a resolution praying for the commencement of the clause introduced by Amendment No. 95.

The Government may say that human rights is a reserved matter and, therefore, it would be out of order for the Assembly even to consider it and investigations relating to it. My reply is that it would be right to give the Assembly a means of enlarging the present scope of human rights legislation and human rights investigations. I beg to move.

7.45 p.m.

Lord Cope of Berkeley

My Lords, it seems to me that the human rights commission will not be able to do its job without carrying out investigations. However, that is not to say that it necessarily needs all the powers suggested by Amendment No. 95. The attendance and examination of witnesses, the production of documents and so forth, lead to the commission behaving almost like a court. Obviously, if it subsequently finds that there has been some breach of human rights legislation or, for that matter, of some other provision, it will then go to court with the result of its investigations and try to prove it. It is almost a form of double jeopardy in the sense that the commission sits like a court with compulsory powers for documents to be presented to it and for witnesses to appear before it. That is the reason behind my hesitation on the matter. As I said, the commission will need to investigate matters; otherwise, it will never get anywhere. Of course, that is largely what it is for; namely, to investigate complaints.

It is a matter of interest that, as far as I can see, the agreement provides that the new unified equality commission which will be set up under the Bill will specifically investigate complaints of default, but there is no such provision as regards human rights. If we were to write in an investigatory clause as suggested by the amendment, we would perhaps be stepping outside the wording of the agreement, although not outside the spirit of it because it is absolutely no use such a commission existing if it cannot look into certain matters. As I say, I am cautious at the rather judicial process set out in the amendment.

Lord Goodhart

My Lords, I rise to express my support for the amendment and, indeed, for the noble Lord, Lord Hylton. In Committee we welcomed the introduction of what is now subsection (8) of Clause 65. That was an important addition given the fact that investigations can usefully and effectively complement court adjudications. However, additional powers will be necessary to enable the commission to investigate effectively any alleged human rights abuses. I believe that those powers certainly include the power to obtain documents and hear witnesses. Indeed, in that respect I disagree with what the noble Lord, Lord Cope, said.

I believe that such powers are necessary. Indeed, according to the current Standing Advisory Commission on Human Rights (which is really the precursor body to the proposed human rights commission) the human rights commission will be deficient if it does not possess those powers. The existing equality commissions have those powers and they are indeed part of the minimum standards for national human rights institutions laid down by the United Nations in the Paris principles of 1993. Therefore, I believe that the amendment introduced by the Government in Committee did not go far enough. Although I do not necessarily agree with the whole of the amendment moved by the noble Lord, Lord Hylton, I strongly support it in spirit. I hope that the Government will be able to take some degree of action upon it.

Lord Archer of Sandwell

My Lords, I rise to support Amendment No. 95. The case for it has been fully deployed by noble Lords who have already spoken, and indeed was deployed at the Committee stage. It will not be of benefit if I repeat it now. I add only that as between the noble Lords, Lord Cope and Lord Goodhart, in relation to the extent of the powers, I find myself more persuaded by the noble Lord, Lord Goodhart.

Lord Williams of Mostyn

My Lords, as the noble Lord, Lord Cope, rightly observed, Amendment No. 95 is designed to give coercive powers to the Human Rights Commission. I do not think that we are entirely in disagreement on the approach, although our solutions differ. I take the point of the noble Lord, Lord Hylton, that his Amendment No. 133 would trigger the power only after cross-community approval.

I shall not repeat all the arguments that we addressed in Committee, but I explained—I think accurately—that we could not reach sufficient consensus among the parties to give the commission this power, which was not mentioned in the agreement. I said that we had not closed our minds on this issue. That is why we introduced amendments which are now on the face of the Bill which I believe are extremely important and ought to go a good deal of the way to satisfy the noble Lords, Lord Hylton and Lord Goodhart, and my noble and learned friend Lord Archer of Sandwell. I refer in particular to Clause 65(1) and (2). We have introduced amendments which will require the commission to review its powers and functions within two years.

In the delicate situation which faces us I think it is a prudent approach to let the commission develop its work, carry out its inquiries and investigations, and if it comes to the conclusion that its powers and functions are not up to the work it is required to do, it would be able—a certain amount of experience having been acquired and a certain amount of time having passed—to make a full report on what it needed to carry out its functions. I believe that the best way forward is to see how well the commission operates under the powers that the Bill will give it and then reconsider the questions which are raised by these amendments when the powers are reviewed within two years—that is not a long period of time—when the commission will form a view on its powers and functions.

Lord Hylton

My Lords, I am grateful for the strong support that I have received on Amendment No. 95. Between now and Third Reading will the Minister consider whether he could introduce a government amendment that would go a little way, or some way, to strengthening Clause 65(8) on the powers of investigation? I hope that he can say something helpful on that. However, given the time of day I have no wish to divide the House. Unless the noble Lord wishes to speak again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 [Restrictions on application of rights]:

Lord Williams of Mostyn moved Amendment No. 96:

Page 33, line 9, leave out ("or 22(1)(a)") and insert (", 22(1)(a) or 65(5)(b)").

On Question, amendment agreed to.

Clause 71 [Statutory duty on public authorities]:

Lord Dubs moved Amendment No. 97:

Page 34, line 38, leave out from ("authority") to ("have") in line 39 and insert ("shall in carrying out its functions relating to Northern Ireland").

The noble Lord said: My Lords, Amendment No. 97 makes clear that the statutory obligation is not confined to Northern Ireland public authorities, but can also include UK departments, such as the Northern Ireland Office and UK-wide public authorities which carry out functions relating to Northern Ireland. The terminology in the amendment is also closer to that in Clause 72.

Amendment No. 99 defines "public authority" for the purposes of this clause. In response to comments received in the other place, an attempt has been made to align this definition more closely with that in Clause 72. However, complete harmonisation has been impossible. Essentially, there are four groups of public authorities to which this clause will apply. The first is UK departments and UK-wide public bodies, which are covered by the reference to Schedule 2 to the Parliamentary Commissioner Act 1967. These also have to be designated for purposes of this clause by order of the Secretary of State. There will be many UK-wide public authorities which will have no particular relationship with Northern Ireland, or will carry out only limited functions there. Due consideration will need to be given to which other United Kingdom departments should be designated.

The second group of public authorities are those listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996. These are Northern Ireland public bodies, including district councils.

The third group are those bodies listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 and these are essentially the Northern Ireland government departments. Finally, the Secretary of State may designate other public authorities for purposes of this clause.

The references to the First Minister, the Deputy First Minister and Northern Ireland Ministers would be removed by this amendment. The implementation of the statutory obligation is through equality schemes and these clearly need to be prepared by institutions, rather than by individuals. Northern Ireland Ministers will, of course, be politically responsible for their departments which will all prepare equality schemes. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 98:

Page 35, line 7, at end insert— ("( ) Nothing in this section shall preclude a public authority from taking any measure designed and reasonably necessary to protect or advance individuals or groups disadvantaged by reason of sex, disability, age, marital status, colour or ethnic origin, sexual orientation, religious beliefs or political opinion.").

The noble and learned Lord said: My Lords, I sense that a long exposition of this amendment will not be welcome to your Lordships at this stage in our proceedings. In Committee we debated an amendment which I ventured to move to ensure that the Bill should not prove to be self-defeating. It would be self-defeating if it had the effect of prohibiting affirmative action to bring about the very equality which it is designed to protect. Sometimes it is necessary to treat some people differently from others in order to redress a balance. It would be proper to provide seats for disabled people even if they are not provided for other people.

My noble friend Lord Dubs replied that the amendment was not necessary. He said that the public authority is required only to have due regard to the need to promote equality of opportunity, and provided it did have due regard to that need it could embark on affirmative action. History does not encourage me to rest content with my noble friend's argument. Those who drafted the Canadian charter of rights and freedoms did not feel content to leave a vacuum on that point. Some of us remember the battles of the 1980s when there were those who argued to the contrary of what my noble friend now seeks to assure us. It is not clear why the matter should not be placed beyond doubt by express words in the Bill. That is the purpose of this amendment.

However, the noble Lord, Lord Lester, who is unavoidably absent, pointed out a defect in the amendment which I previously sought to move. He pointed out that there must be some limit on affirmative action, otherwise it will swallow the requirement of promoting equal treatment. He pointed out that the Canadian charter adopted the criterion of proportionality. I have included that limitation in this amendment. I hope now that my noble friend will feel able to think again. I beg to move.

Lord Goodhart

My Lords, I shall speak briefly. The noble and learned Lord, Lord Archer of Sandwell, has already mentioned the fact that at the Committee stage of this Bill my noble friend Lord Lester of Herne Hill strongly supported an amendment to permit affirmative action where reasonably necessary. I simply add that we on these Benches are firmly in favour of the amendment which has just been moved.

Lord Dubs

My Lords, this amendment is similar to one tabled at Committee stage by my noble and learned friend Lord Archer of Sandwell and my noble friend Lord Morris of Manchester. I appreciate that my noble and learned friend Lord Archer said it was similar but not identical.

The amendment has become known as the "affirmative action exemption". It is based on the concern that Clause 71 might call into question the ability of public bodies to take affirmative action to correct disadvantage in appropriate cases. We would be concerned if there was such an incompatibility between affirmative action and the new statutory obligation on public authorities. Affirmative action, in appropriate circumstances, is an important method of combating inequalities. It is our firm intention that it should remain available and, after careful consideration, we do not believe that Clause 71 calls this into question.

Nothing in Clause 71 renders unlawful what would be lawful affirmative action under the existing fair employment, equal opportunities and race relations law. Moreover, the fundamental duty imposed by Clause 71 is for public authorities to, have due regard to the need to promote equality of opportunity". The justification for affirmative actions is that they are necessary to correct existing disadvantage or imbalance in equality of opportunity. They must therefore be directed at promoting equality of opportunity. Clause 71 as it stands is not only consistent with affirmative action but means that public authorities are bound to have regard to the need for affirmative action when considering their duty under the clause.

The Government are confident that Clause 71 in no way hinders affirmative actions when properly directed at promoting equality of opportunity. In some cases it will have the effect of requiring public authorities to have due regard to the possibility of undertaking affirmative actions, where they are not already doing so, if these would enable them to fulfil their duty.

An exemption for affirmative actions is therefore unnecessary and runs the risk of calling into question the broad nature of the equality of opportunity obligation which the Government intend to enact. I hope that my noble and learned friend will feel somewhat persuaded by what I have said.

8 p.m.

Lord Archer of Sandwell

My Lords, I am grateful to my noble friend. If I sought to divide the House now I would be a candidate for the most unpopular character in history. My noble friend and I have both made a prediction. Time will tell whether my anxieties are justified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 99:

Page 35, leave out lines 9 to 13 and insert—

  1. ("(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;
  2. (b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
  3. (c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation;").

On Question, amendment agreed to.

Clause 72 [Discrimination by public authorities]:

Lord Goodhart had given notice of his intention to move Amendment No. 100:

Page 35, line 24, after ("Ireland") insert (", including functions relating to the provision of goods, facilities or services to the public or a section of the public,").

The noble Lord said: My Lords, I do not intend to move Amendment No. 100, but I intend to move Amendment No. 102, with which it is grouped. I am not sure whether it would be procedurally correct to talk to that amendment now or after Amendment No. 101.

[Amendment No. 100 not moved.]

Lord Archer of Sandwell moved Amendment No. 101:

Page 35, line 26, after ("belief") insert (", sex, race, disability, age, marital status, dependants, sexual orientation").

The noble and learned Lord said: My Lords, it is rare indeed that one listens to my noble friend Lord Williams of Mostyn without acquiring a clear grasp of his argument and the reasons for his conclusion. At Committee stage I underwent that unique experience. We all agreed that in Clause 71, which deals with the duties of public authorities in promoting equality of opportunity, there is a requirement to promote equality of opportunity in respect of all the potential bases of discrimination, which are set out in Clause 71(1)(a). Yet when we come to Clause 72, which deals with discrimination by public authorities and incitement to discrimination, the protection is confined to religious belief and political opinion.

I listened to my noble friend in Committee—and carefully read and re-read what he said—but I still have not grasped the reasons for the difference. I cannot believe that it is something to do with what is not explicitly spelled out in the agreement. Surely it was clear among all parties to the agreement that all these bases of distinction were intended to be discouraged. I promise my noble friend that if he seeks again to explain the reasons for the distinction I will try very hard to follow him. I would much prefer that he accepts the amendment. I beg to move.

Lord Dubs

My Lords, Clause 72 is designed broadly to re-enact Section 19 of the Northern Ireland Constitution Act 1973, which creates a ban on discrimination by public authorities on the grounds of religious belief or political opinion. Amendment No. 101 would widen the scope of the clause so that it made unlawful discrimination by public authorities on the grounds of gender, race, disability, age, marital status, dependants and sexual orientation.

My noble and learned friend Lord Archer of Sandwell referred to my noble friend Lord Williams of Mostyn, assuming that he would be dealing with this amendment. I hope I can be nearly as persuasive as my noble friend, who is on the Front Bench with me.

My noble and learned friend Lord Archer makes a strong case for extending the ban on discrimination to cover these additional grounds. There is, however, one "but". Such a far-reaching proposal is not envisaged in the Belfast agreement and so this is not the proper place to consider it. This legislation is intended to give effect to the Belfast agreement, not to enable a comprehensive review of discrimination and equality provisions. It is not intended to do that. That is the only argument that I shall use tonight against my noble and learned friend's amendment. If we were embarking upon a wide-ranging review of discrimination measures, I would listen very sympathetically to what my noble and learned friend has said. But that is not the case. It is not appropriate to do that on the back of a Bill dealing with the Belfast agreement. I hope that my noble and learned friend will feel able to withdraw his amendment.

Lord Archer of Sandwell

My Lords, my noble friend is very patient with me. It was in the 1973 Act—I follow that—but human rights is not a static subject. We have moved a long way since 1973. If that were the only basis of my noble friend's reasoning I would not be impressed.

He tells me that it is not in the agreement. It is certainly not spelt out specifically in the agreement, but I thought that was because everyone thought that that went without saying. I am not sure that I can carry the debate much further this evening. The Government's reasoning is clear to me now—it is the agreement, the whole agreement and nothing but the agreement. If something escaped inclusion in the agreement perhaps we should not be dealing with it at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 102:

Page 35, line 26, at end insert—

("( ) For the purposes of subsection (1), a person discriminates against another person on the grounds of religious belief or political opinion if—

  1. (a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
  2. (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—
    1. (i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it, and
    2. (ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and
    3. (iii) which is to the detriment of the other because he cannot comply with it.").

The noble Lord said: My Lords, Clause 72(1) of this Bill makes it unlawful for a public authority carrying out functions in Northern Ireland to discriminate against a person or class of person on the grounds of religious belief or political opinion. It does not, however, define discrimination so that it clearly involves indirect discrimination. It is well known that all anti-discrimination legislation, in order to be fully effective, needs to prohibit both direct and indirect discrimination. The purpose of this amendment is to write into Clause 72 a definition of discrimination which includes indirect discrimination.

Indirect discrimination can, in many cases, be at least as effective a method of discriminating as direct discrimination. The definition used here is not novel in any way. It is a definition of indirect discrimination which is used in the Fair Employment Act. As this definition is already included elsewhere in legislation for Northern Ireland, I ask the Minister why it is that indirect discrimination cannot be expressly incorporated into Clause 72 as it has been in other legislation. I beg to move.

Lord Archer of Sandwell

My Lords, I rise simply to say that I wholly support what the noble Lord, Lord Goodhart, has just said, as I did at Committee stage. Nothing would be gained if I were to repeat his arguments.

Lord Dubs

My Lords, Amendment No. 102 would increase the scope of Clause 72 so that it covered indirect as well as direct discrimination. In the Bill we are seeking to implement the Belfast agreement as closely as possible, as well as re-enacting those parts of the Northern Ireland Constitution Act 1973 which are not covered by the agreement. Clause 72 largely re-enacts the provisions of Section 19 of the 1973 Act.

I recognise and understand the strong arguments for an extension of the ban on discrimination on the grounds of religious belief or political opinion so that it also covers indirect discrimination. But, as I explained when we considered this point in Committee and, indeed, on the previous amendment a moment or two ago, the Government argue that this Bill is not the place for such a far-reaching change in the law which is not envisaged in the agreement. I do not want to take up the time of the House by repeating the arguments of a moment ago. I would therefore invite the noble Lord to withdraw the proposed amendment.

Lord Goodhart

My Lords, I very much regret what the Minister has just said. I think this is an unsatisfactory situation. Obviously this is not an occasion on which it would be appropriate to ask for the opinion of the House, as the noble and learned Lord, Lord Archer, said in respect of the previous amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 103:

Page 36, line 16, leave out ("(other than a Northern Ireland department)").

The noble Lord said: My Lords, Amendments Nos. 103 and 104 go together. They are technical amendments which improve the definition of "public authority" in the clause because Northern Ireland departments fall within the second order listed but the intention of the provision remains the same. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 104:

Page 36, line 19, leave out ("department or other authority") and insert ("authority (other than a Northern Ireland department)").

On Question, amendment agreed to.

Clause 73 [Unlawful oaths etc.]:

Lord Dubs moved Amendment No. 105:

Page 36, line 31, leave out ("that") and insert ("the").

The noble Lord said: My Lords. Amendment No. 105 is purely a matter of drafting to ensure consistency within Clause 73(1). It is a very small matter to trouble your Lordships with but any inconsistency in drafting in referring to similar things could lead to an assumption in the future that a different meaning was intended by it. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 106:

After Clause 75, insert the following new clause—