HL Deb 21 October 1998 vol 593 cc1544-8

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

  1. (a) the Human Rights Act 1998, or
  2. (b) section 61 or 62 of this Act,
has occurred or may occur.

(2) Where the Commission propose to conduct an investigation under this section, they 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 their opinion is able to furnish information or produce documents relevant 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 their 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, they 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: In moving the amendment, perhaps I may say this to the noble Lord, Lord Molyneaux. I am sure that he will be well aware that the old Standing Advisory Commission on Human Rights is a totally different animal from the proposed new human rights commission. They are barely comparable. I beg to move.

Lord Molyneaux of Killead

There is a certain ancestry. I believe that it has established a fairly good model with good foundations for future development.

Lord Hylton

I do not deny that. I am grateful to the Minister for the four assurances he gave. However, I hope that between now and Report stage it might be possible to draw together the best points arising from Amendment No. 139 and my amendment, Amendment No. 140, in order to come forward with something new.

We have yet to consider later amendments standing in the name of the noble and learned Lord, Lord Archer of Sandwell, which concern judicial review and injunctions. Those may go some way to meeting the points I sought to raise about investigations and compulsory powers.

Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Clause 55 [Assistance to individuals]:

Lord Williams of Mostyn moved Amendment No. 141:

Page 26, line 34, leave out from ("to") to end of line 38 and insert—

  1. ("(a) proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or
  2. (b) proceedings in the course of which such a person relies, or wishes to rely, on such law or practice.").

The noble Lord said: Government Amendment No. 141 widens the ambit of the clause so that the commission will be able to assist persons in any proceedings which, in the view of the commission, involve the law or practice relating to the protection of human rights.

We want to give the commission a wide discretion. That is why we have brought the amendment forward. The commission will therefore be free to assist persons in cases beyond those involving breaches of rights under the European Convention on Human Rights and under what I hope will become the Human Rights Act. That was all that the Bill as originally drafted allowed. It is our intention that it should be free to assist in cases involving breaches of Clauses 61 and 62 of the Bill which deal with discrimination by public authorities and the making of unlawful oaths.

The width of the commission's remit means that there may well be some overlap with the remit of the equality commission. The Government therefore propose that the way to address the proper relationship between the commission and other relevant bodies should be in a non-statutory "memorandum of understanding" agreed between the Government and the commission and by separate non-statutory arrangements agreed between the two commissions.

I hope that the changes which the Government propose to the clause will enable the noble and learned Lord, Lord Archer, and the noble Lords, Lord Hylton and Lord Lester, not to seek to press Amendments Nos. 142 and 143.

Amendments Nos. 144 to 148 are technical improvements which ensure that the Bill allows the commission to assist "persons" rather than simply "individuals". I beg to move.

Lord Archer of Sandwell

Once again we are engaged in dialogue. That will go into my diary. My noble friend's amendment addresses the same point as the amendment that I shall seek to move. We do not provide quite the same answer.

Clause 55 is about the power of the commission to assist an individual in bringing proceedings. Subsection (1) defines the proceedings for which assistance may be given. As my noble friend said, as at present defined it is limited to proceedings under the Human Rights Act. He seeks to extend that as he indicated.

I appreciate that my attempt to address the problem goes wider and is subject to the criticism indicated earlier by the noble Lord, Lord Lester, that there would be an overlap between the jurisdiction of the commission and the jurisdiction of the equality commission.

The reason why I thought the overlap might be a price worth paying was that the question arises: what would be the position if the same individual sought to rely both on the provisions of the Human Rights Act, or the further provisions which my noble friend has extended to that subsection, and the legislation relating to discrimination? It would be absurd if someone needed to go first to the human rights commission for assistance with one part of his claim and then solemnly to the equality commission for assistance with the other part, particularly if both were involved in the same proceedings.

I have considered my noble friend's amendment and I very much welcome it. Given the scheme of the Bill, I wonder whether it would meet the situation which I have endeavoured to indicate. I believe that my noble friend has now very helpfully made it clear that it is not intended to go more widely into the sphere of anti-discrimination than most of us thought. In those circumstances, if it is the Government's intention that the power should not apply, I believe that we are entitled to ask the Minister how he would address the problem of the proceedings which embrace both sets of provisions.

I noted the amendment of the noble Lord, Lord Lester. I certainly would not pretend that my drafting is an improvement on his. At this stage I am content to await the debate and then we can see how to proceed from there. I believe it is right that we pay tribute to the Government. In another place Mr. Paul Murphy indicated that the Government were going to reflect on this matter in the interim period, and clearly they have done so. I am sure that they are not surprised that we also have reflected, together with a number of people closely concerned with human rights in Northern Ireland. It may be that together we can deal with the problems which exist without necessarily trespassing on the ground that troubles my noble friend.

Lord Lester of Herne Hill

I pay tribute to the Government for tabling Amendment No. 141. Before I come to that may I say in response to the earlier debate that I, too, am a member of the Northern Ireland Bar, which I regard as an enormous privilege. I pay particular tribute to the independence and impartiality of the judges there, who are among the bravest people I have ever had the privilege of knowing. They have managed to uphold the rule of law in terrible circumstances and at great personal deprivation.

I support Amendment No. 141. I wish that we had something like it for the people of England, Wales and Scotland. I say that because I have been depressed to read a ministerial response to a Question for Written Answer in which I asked whether, under the Human Rights Act, the Government would instruct their counsel not to ask for costs except in abusive or vexatious cases brought under the Human Rights Act. The answer was that they intended to instruct their counsel to ask for costs from unsuccessful applicants under that Act. Of course, in Northern Ireland the position would be quite different, because under Amendment No. 141 the human rights commission will have the power to give financial assistance for proceedings brought under the Human Rights Act and under the Northern Ireland Act. In the end I hope that we shall find something similar on this side of the Irish Sea so that we can enjoy genuine access to justice here as well.

Subject to clarification from the Minister, it seems to me that Amendment No. 141 is wide enough to cover what is in Amendments Nos. 142 and 143. Amendment No. 141 covers assistance for proceedings involving law or practice relating to the protection of human rights. I take it that that includes proceedings for unlawful religious discrimination by public authorities and everything else which is in Amendment No. 142 or 143. For example, in Amendment No. 143, which is my own amendment, I assume that it will include action contrary to Section 6(2)(e) of the Act—

Lord Archer of Sandwell

I hope the noble Lord will forgive me. I thought that originally. I was somewhat troubled because I believe there is some ambiguity about it. To some extent that was resolved by my noble friend Lord Williams, who said that that was not the Government's intention and that they did not intend to cover the whole area of discrimination.

Lord Lester of Herne Hill

I am grateful. If that is right, speaking for myself, I do not mind whether the equality commission or the human rights commission has the power to grant individuals assistance for access to justice as long as one or other of them has that power. I do not mind if the matter is dealt with by administrative arrangements between each commission and the Government. That seems to me to be perfectly sensible. All I am concerned about is that there should not be a hole in the middle. In other words, any breaches of human rights law, including the equality code, should be capable of being assisted either by the human rights commission or by the equality commission, with suitable dovetailing arrangements to avoid wasteful duplication. Provided that we can get those assurances, it then becomes purely a matter of plumbing of machinery.

The key question is: are individuals, including companies, because of the addition of the word "person" as a substitution for "individual", who are victims of human rights violations—whether of quality of treatment or in other ways—able to be assisted in meritorious cases by a statutory agency? Provided that the answer to that is yes, I would not wish to move Amendment No. 143. That would mean that the Government ensure that that is covered by one means or another and I would therefore be entirely satisfied so far as Northern Ireland is concerned. I will continue to grumble with increasingly cantankerous noises if the Government do not do the same or similar on this side of the Irish Sea.

Lord Williams of Mostyn

It may be that the noble and learned Lord, Lord Archer, misheard me or I did not speak sufficiently clearly. I did say that under Amendment No. 141 it was our intention that the commission could assist cases under Clauses 61 and 62 of the Bill. I do not think that there is a hole in the middle. Our amendment is a wide and generous one. I will consider very carefully the points—which are of some technical detail—which the noble Lord, Lord Lester, and the noble and learned Lord, Lord Archer, have put. If we feel that we are not sufficiently astute in our present construction of Amendment No. 141—I think we are—it does not do any harm to think again.

Lord Archer of Sandwell

Perhaps I too failed to make myself clear. What was troubling me was that the sections that were mentioned were to be confined to public authorities. They do not seem to deal with discrimination by private individuals.

Lord Williams of Mostyn

That is so. I wanted to make it clear that I had referred to Clauses 61 and 62. Amendment No. 141 does not restrict itself to public authorities. I will think quite carefully again, together with the officials who have spent so much labour and time and enormous expertise in considering these matters. If we are wrong—I do not think we are—then we will return to the matter on Report.

Lord Lester of Herne Hill

Before the Minister sits down, could he also include Clause 6(2)(e) and Clause 19 (1)(c) as well as Clauses 61 and 62. I wholly welcome inserting "person" instead of "individual"—I have not spoken to that—and I wholly welcome Amendments Nos. 144 to 148, which seem very sensible.

Lord Williams of Mostyn

I take all those points on board and undertake that either I or, preferably, my noble friend Lord Dubs will deal with them when we come to Report. In the meantime I commend Amendment No. 141.

On Question, amendment agreed to.

[Amendment Nos. 142 and 143 not moved.]

Lord Dubs moved Amendments Nos. 144 to 148:

Page 26, line 39, leave out ("individual") and insert ("person").

Page 27, line 1, leave out ("individual") and insert ("person").

Page 27, line 3, leave out ("individual's") and insert ("person's").

Page 27, line 13, leave out ("an individual") and insert ("a person").

Page 27, line 14, leave out ("individual") and insert ("person").

On Question, amendments agreed to.

Clause 55, as amended, agreed to.

Lord Archer of Sandwell moved Amendment No. 149:

After Clause 55, insert the following new clause—