HL Deb 21 October 1998 vol 593 cc1529-44

8.30 p.m.

House again in Committee.

Clause 54 [The Commission's functions]:

Lord Williams of Mostyn moved Amendment No. 132:

Page 26, line 3, at end insert— ("() The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving—

  1. (a) its effectiveness;
  2. (b) the adequacy and effectiveness of the functions conferred on it by this Part; and
  3. (c) the adequacy and effectiveness of the provisions of this Part relating to.").

The noble Lord said: Amendment No. 132 relates to Clause 54, which sets out the functions of the Northern Ireland human rights commission. The clause is designed to reflect the list of functions in paragraph 5 of the Rights, Safeguards and Equality of Opportunity section of the agreement. The commission will keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. The Bill does not attempt to restrict the meaning of "human rights". It is deliberately intended to be wide, enabling the commission itself to identify what it considers constitute such rights.

It will advise the Government and the Executive Committee of measures which ought to be taken for the protection of human rights. The Bill provides that it will see all proposed Assembly Bills and will be able to offer an opinion on whether they are compatible with the European Convention on Human Rights. It will be able to help people whose rights have been denied or abused. It will develop, through education and research, an active human rights culture in Northern Ireland. It will consult and advise as a matter of priority on the drawing up of a Bill of Rights to suit Northern Ireland's particular needs. It will do everything it can to ensure that the North-South human rights committee envisaged by the agreement is set up.

We have listened carefully to various arguments which have been put, not only in this Chamber this evening but also outside, in many useful conversations and discussions. We have not closed our minds on any issue and therefore we are bringing forward this amendment, which I hope will meet with general agreement and satisfaction, to require the commission not later than two years after establishment to review the adequacy of its powers. I beg to move.

Lord Lester of Herne Hill

As I listened to the Minister, I was thinking how good it would be if we could have a body of this kind for Great Britain as well as Northern Ireland to promote a culture of liberty and the full implementation of the rights of the rest of us in this part of the United Kingdom. Unfortunately, that is beyond the scope of this Bill although fortunately the Minister has a responsibility in Great Britain as well as in Northern Ireland.

This amendment has been included to counter the criticism made by the Committee for the Administration of Justice and other non-governmental groups in Northern Ireland that the new commission has not been given adequate powers. The Government have responded by suggesting that the commission can review its own functions and powers after two years of operation and then recommend changes. Of course we welcome that on the old principle that a quarter of a loaf is better than no bread. But it still falls short of the international standards set out in the UN-sponsored Paris Principles 1991 concerning the status of national human rights commissions where human rights commissions are supposed to be given sufficient powers from the start.

There is of course no guarantee that the commission will recommend an extension of its powers nor any requirement for the Government, the Assembly or Parliament to act on the commission's recommendations. So while we welcome the amendment wholeheartedly, we very much hope that when we come to the later amendments, including those tabled in the name of the noble and learned Lord, Lord Archer of Sandwell, we will be able to strengthen the existing powers now to be given to the human rights commission rather than wait for the result of a review in two years' time. We therefore support the amendment but will come back to the powers of the commission later.

Lord Hylton

I welcome the government amendment. It will be helpful, particularly when the commission has had a chance to establish its first priorities for spending money, and then to review how they have worked out in practice. As regards the Paris Principles, referred to by the noble Lord, Lord Lester of Herne Hill, I would just mention that a piece of work in which I was involved in a minor way and which ended up as a book, published by Macmillan, entitled Human Rights in Great Britain and Ireland—meaning the whole of Ireland, north and south—actually proposed such a commission quite some time in advance of the 1991 text.

Lord Kingsland

Bearing in mind the practice in the rest of the United Kingdom, we think that the noble Minister has got this matter in his amendment exactly right.

Lord Williams of Mostyn

That is very generous—not unexpectedly, because the noble Lord is always generous. As I read out the menu I thought that I detected the ghost of times past in the conversations that the noble Lord, Lord Lester of Herne Hill, and I have had on many occasions, as to his desired menu for the rest of the United Kingdom. All I can say is that this is very, very substantially more than a quarter of a loaf: I think it is a good three-quarters.

On Question, amendment agreed to.

Lord Desai moved Amendment No. 133:

Page 26, line 3, at end insert— ("() The Commission shall be as concerned with issues of discrimination on grounds of age and sexual orientation as they are with other forms of discrimination.").

The noble Lord said: I beg leave to move this amendment on behalf of my noble friend Lord Morris who is unable to be here this evening. In moving Amendment No. 133 I shall, with permission, also speak to Amendment No. 134.

Amendment No. 133 deals with a matter which we have dealt with before in Amendment No. 130, which proposes legislation for Northern Ireland to prohibit discrimination on grounds of age or sexual orientation. In reply to earlier criticisms, I would say that in the light of Amendment No. 132, which we have just passed, if the commission is surveying various things about its effectiveness, and so on, it may as well take on board whether these two additional grounds for discrimination are worth including, or not. I certainly think that they are worth including, but I shall not speak any further because I am sure that at this late hour your Lordships will want to make progress.

Amendment No. 134 proposes that matters referring to an equality commission should be under the human rights commission. Again, I do not want to speak very much about that because my noble friend explained it all in a speech on an earlier occasion. I only wish to say that I strongly support the proposed subsection (1C)(a), which is about resources. The Committee will recall that at Second Reading the noble Lord, Lord Molyneaux, and other speakers, including myself, expressed some anxiety that resources may not be available for what might be called non-controversial grounds for discrimination because they were neglected whereas the more controversial grounds were given more money. I therefore think it is very important that subsection (1C)(a) should be taken seriously. I beg to move.

Lord Monson

If amendments like Amendment No. 133 are not agreed to, is there not a danger that Northern Ireland, to a greater extent than anywhere else in the United Kingdom, will become a paradise for the politically correct, therefore a paradise for the litigious and hence a paradise for lawyers?

Lord Lester of Herne Hill

I am sorry that the Minister thinks that I am the ghost of times past; I always felt that I was the spirit of the future. Being an optimist by nature I continue to battle for the same commitment for equality by this Government as was demonstrated by a government I had the honour to serve in 1974 to 1976. We were then a minority government facing an embattled opposition as we sought to legislate for equality.

I have great sympathy for what is behind these amendments. However, because of the way in which the Government are legislating, I feel that the amendments are being put into the wrong box. Perhaps I can speak about the separate boxes which trouble me.

It is right to have one body called an equality commission and another called a human rights commission. Each deals with a different aspect of human rights. Equality without discrimination is just as much a basic human right in Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the European Convention on Human Rights. Equality is as much a part of human rights as prohibitions on torture, inhumane treatment or any other fundamental human right. But it is sensible to have a specialist enforcement mechanism to deal with equality without discrimination.

The problem is that in the scheme of the Bill, which I am beginning to understand, the equality commission is to be a body subordinate to the Assembly whereas the human rights commission will have full constitutional status being accountable to the Secretary of State and the Westminster Parliament.

Many people would agree that discrimination on grounds of age or sexual orientation is unfair, as is discrimination on any other ground. Therefore it is right that they should come within an equality code and that public authorities in Northern Ireland and everywhere else should be bound not to discriminate on those grounds. Amendment No. 133 is wrong, therefore, to seek to put sexual orientation and age discrimination into the human rights commission box rather than the equality commission box. That is the wrong place. They should be in the equality commission box, provided that what we get is a full-blooded equality commission of the same status as the human rights commission. Logically, discrimination belongs as part of the remit of the equality commission.

On a rather narrow ground, therefore, I oppose Amendment No. 133 because it is concerned with discrimination and therefore is a matter for the equality commission rather than the human rights commission. But if the Government do not create an equality commission of equivalent status to the human rights commission I would change my mind and regard it as so fundamental to the rights of everyone in Northern Ireland that they be protected from discrimination on any unfair ground that I would rather have it dealt with by the human rights commission than nobody at all. At the moment, therefore, my mind is open. I oppose Amendment No. 133 at this stage as being better dealt with by the equality commission but will wait until a later stage in the debate to see what the Government intend to do about the status of the equality commission, at which time I may return to this subject.

We are also dealing at this stage with Amendment No. 134. That would dissolve the Fair Employment Commission, the Equal Opportunities Commission, the Commission for Racial Equality and the Human Rights Council and give their functions to a human rights commission. That would essentially copy what the Government propose to do in establishing the equality commission; that is, give those functions to the human rights commission.

While I agree that equality rights are a subset of human rights generally, merging all the equality agencies into a conglomerate human rights commission would rightly cause consternation among minorities in Northern Ireland. We have already seen a strong feeling in Northern Ireland among women—the Women's Coalition—the disabled and ethnic minority groups that this amalgamation into the equality commission will lead to a hierarchy of rights and so forth.

I have been prepared to support the Government in creating a single equality commission on terms I have indicated before. But it would add to the sense of unfairness if the equality agencies were to be amalgamated not just into an equality commission, but also into a human rights commission which will have a vast range of matters to deal with; for example, the entire contents of the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

I apologise for having taken a few minutes to explain myself, but for those reasons I am opposed to Amendments Nos. 133 and 134, although I entirely understand why they were tabled.

Lord Kingsland

The Opposition believe that Amendment No. 133 is rather premature. In relation to Amendment No. 134, it would be impertinent of me to add anything to what the noble Lord, Lord Lester, said, with which I entirely concur.

Lord Williams of Mostyn

The noble Lord, Lord Monson, said that if these amendments were agreed it would be a litigious paradise for lawyers. That is a compelling argument for my accepting the amendment. However, I shall resist that temptation.

We have not strictly defined human rights in the Bill and I am happy to repeat that if the commission chooses to concern itself with human rights involving issues of discrimination it will be free to do so without the need for special provision. We want it to develop organically with its own sense of purpose and priorities in a very difficult situation.

Amendment No. 134, as has been said, would subsume the functions of the equality commission into the human rights commission. We are trying as far as possible to implement the Belfast agreement, which envisaged an equality commission and a human rights commission as two distinct bodies. I therefore invite my noble friend Lord Desai not to press the amendment.

Lord Desai

I thank all Members of this Committee who have spoken in the debate. I am reassured by what my noble friend Lord Williams said on Amendment No. 133 and take heart from that. Before I proceed to withdraw the amendment perhaps I may say that the argument of the noble Lord, Lord Lester, in general in relation to the unequal status of the two bodies should perhaps make him favour equality issues coming under an independent human rights commission, which would have a higher status than an equality commission. However, I shall not press that.

I see that there is a difference, but eventually I consider these things to be very much a part of the European Convention on Human Rights, the universal declaration or the social and political rights convention and they could be merged. I do not want to press that. I am grateful for my noble friend's comments and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 134 not moved.]

Lord Hylton moved Amendment No. 135:

Page 26, line 9, at end insert— ("(2A) The Executive Committee of the Assembly shall refer all proposed Bills in draft to the Commission.").

The noble Lord said: Amendment No. 135 should perhaps have been inserted earlier in the Bill to replace Clause 11(4)(a) which requires Bills to be sent to the commission as soon as reasonably practicable after introduction.

The purpose of my amendment is to save time and to enable human rights scrutiny to begin while Bills are still in draft form and therefore are probably more malleable. I trust that this is a simple proposal which is likely to have good and practical consequences.

In moving Amendment No. 135, I should like to speak also to Amendments Nos. 136 and 138 which stand in my name. These amendments widen the scope of the commission's work slightly by giving it a right to look at, and to comment on, Westminster Bills which could affect human rights in Northern Ireland. As I understand it, "the Secretary of State" mentioned means the Secretary of State responsible for a particular Bill or for the subject matter of a Private Member's Bill. It would be most unfortunate if some oversight here in Westminster or in Whitehall were to prejudice human rights in Northern Ireland. Those amendments, and Amendment No. 137 which is consequential, are intended to prevent such a possibility. I beg to move.

Lord Archer of Sandwell

The amendments which stand in the name of the noble Lord, Lord Hylton, seek to provide that the executive committee of the Assembly shall refer all proposed Bills to the commission. I entirely agree with that. Indeed, I agree with everything that the noble Lord said and, at this time in the evening I do not think that the argument would benefit if I were to repeat what he said.

I derive a further feeling of comfort from the fact that, following discussion elsewhere, the Bill now provides that the commission shall not have to wait for a request from the Assembly before tendering advice; it may tender unsolicited advice. Those who care about human rights in Northern Ireland are grateful for that. A commission which was not empowered to tender unsolicited advice would be a poor thing indeed.

I pay tribute to the receptive ears of my noble friends on the Front Bench who have responded to some of our representations. It is always a delight when either my noble friend Lord Dubs or my noble friend Lord Williams of Mostyn responds to one of our amendments.

Lord Dubs


Lord Archer of Sandwell

I do not expect that flattery will carry my cause very much further, but I thought that that should be said.

I rise to speak simply to my amendment, Amendment No. 136A, which seeks to address the converse anxiety. At present, as I understand it, the Bill would compel the commission to respond to any request for advice from the Executive or the Assembly. Those of us who have been involved with non-governmental organisations, commissions and quangos know that if the commission receives too many requests it may well become over-burdened, especially if its resources are limited—and somehow I do not see this particular coffer being overflowing. The commission could then be inhibited from concentrating on the Bills which it believes demand its concentration. I believe that the commission will be more effective if it has full control over its own workload. I am assuming that normally it will want to respond to requests for advice. However, I believe that it should be left to the commission to apportion its own resources. My amendment would provide that the commission is not bound to respond to every request for advice and, in due course, as at present advised, I shall seek to move it.

Lord Lester of Herne Hill

I entirely agree with everything that has been said by the noble and learned Lord, Lord Archer of Sandwell. I support Amendment No. 136A, which stands in his name, for the reasons that he has given, including not overloading the human rights commission.

I entirely agree with the aim of Amendment No. 135. I simply wonder whether the matter could be dealt with without writing it on the face of the Bill but by an undertaking being given by the Government that they would expect all proposed Bills to be referred to the human rights commission before publication. Perhaps the standing orders of the Assembly should be amended to ensure compliance with that. Obviously, it is sensible for all proposed Bills to be referred to the human rights commission before publication—that is, before public positions have been taken up—rather as in France the Council of State considers draft legislation at an early stage.

On Amendment No. 137, I believe that, for the reasons given by the noble and learned Lord, Lord Archer, its provisions would be a time-consuming and oppressive remedy and I would not favour that.

The provisions of Amendment No. 138 would make sense because the Westminster Parliament will still have the ability to enact legislation that may affect human rights in Northern Ireland and therefore it seems sensible to enable the human rights commission to comment on Westminster legislation of that kind. Westminster would retain the obligation to observe international human rights conventions, but it would be logical for the commission also to have that function.

Lord Kingsland

I have some reservations about the executive committee referring all proposed Bills to the commission in draft. It seems to me as a matter of principle to contravene the separation of powers. Informal discussions between the commission and the executive committee would be perfectly proper. In my view, the development of such a practice would meet adequately the concerns expressed by the noble and learned Lord, Lord Archer of Sandwell.

On the other hand, I entirely endorse what lies behind the drafting of subsection (3A) as suggested in Amendment No. 136A. The obligation for the commission to advise the Assembly on every Bill would be not only excessively onerous on the commission, but also, in terms of the business of the Assembly, excessively onerous on the Assembly. For that reason, I am greatly attracted by the amendment and urge the Government to consider it seriously.

Lord Williams of Mostyn

Again, I am grateful for the contributions that have been made because I do not think that the end purpose towards which we are working differs between us. Essentially, it is a matter of emphasis and judgment.

Perhaps I may deal with the amendments in sequence. Amendments Nos. 135, 136, 137 and 138 stand in the name of the noble Lord, Lord Hylton. They would add to the existing requirement in Clause 11 for the Assembly to refer a copy of each Bill, as soon as reasonably practicable, to the Northern Ireland human rights commission. One of the commission's key functions is to consider draft legislation referred to it by the Assembly. We think that Clause 11 has got it about right. It requires that all legislation be referred to the commission, but with the commission having the appropriate and necessary freedom to give its advice only when it thinks necessary, except in those cases where the Assembly specifically requests such advice. If the Assembly so decides, it could refer proposed legislation to the commission at a much earlier stage. For those reasons, which I have given shortly, I believe that Clause 11 has got it about right, bearing in mind that we want the Assembly to have discretion within appropriate parameters.

The amendments would also require Bills introduced in Parliament to be submitted to the commission if they appear to affect human rights in Northern Ireland. We do not think that that is necessary because Westminster Bills will be subject to the regime proposed in the Human Rights Bill to ensure that Ministers consider their compatibility with the European Convention on Human Rights. As is well known to the Committee, in the future every Minister introducing a Bill will have to certify compatibility or non-compatibility with the convention. That will be part of a Minister's duties when introducing a Bill.

Lord Lester of Herne Hill

I am grateful to the Minister for giving way. I understand what he has just said, but that applies only to the European Convention on Human Rights. A great gap in that convention is that the guarantee of equality without discrimination is much weaker than under Article 26 of the International Covenant on Civil and Political Rights. Therefore, that mechanism of certifying Bills will be confined to only the European Convention on Human Rights, not the covenant. There will therefore be a gap in that element of parliamentary scrutiny. I wonder whether that might be considered hereafter.

9 p.m.

Lord Williams of Mostyn

I certainly undertake to consider that. The answer to the noble Lord's point—which I think is a fair one in terms of being accurately descriptive—is that any government are free, without special provision, to send future Westminster Bills in draft to the commission for comment. I refer to a point that was made earlier; namely, that one does not want to overload the commission in the early stages when it will have a vast workload. That is an important point which I believe was made by my noble and learned friend Lord Archer of Sandwell.

Lord Archer of Sandwell

I am grateful to my noble friend for apparently agreeing with my argument. If I now appear to be backpedalling it is because I think there is a danger in what he has just said. Human rights are not a purely academic exercise. It is important that someone who is close to the grassroots and to the daily life of people should be able to advise on where human rights bite. Would not there be that advantage in submitting them to the commission in Northern Ireland, which would not have to respond?

Lord Williams of Mostyn

There is an advantage in that. Equally, there is an advantage in flexibility and looking at the organic development of the commission's work in Northern Ireland where conditions are quite different historically and presently from experience in the rest of the United Kingdom. We all know that, otherwise we would not be discussing this Bill. Therefore we oppose these amendments. We think they are unduly prescriptive.

Amendment No. 136A stands in the name of my noble and learned friend Lord Archer of Sandwell. It requires the executive committee to refer all proposed Bills to the commission in draft. However, it also requires the Assembly to take into account the commission's advice on the human rights compatibility of the proposed Bill. We do not think that requirement ought to exist and we do not think that the Assembly should be required to take into account the advice of the commission. There is a difficulty that if the commission is overburdened and delays giving advice, the passage of legislation which might otherwise be desirable could be held up. The agreement does not of course say anything about the Assembly having a duty to take the commission's advice into account.

I do not always regard the agreement as holy writ but it is extremely important beyond its own wording. The agreement was concluded with great difficulty. The agreement provides at page 17 only that the commission should consider draft legislation referred to it by the Assembly. The existing clause reflects the agreement. I do not say this out of faintheartedness—I think I have a deeper purpose—but one wants to be extremely cautious (I think the noble Lord, Lord Cope of Berkeley, mentioned this earlier in our discussions) in going outside the ambit of the agreement.

Lord Lester of Herne Hill

Before the Minister sits down, I wish to make a comment which I hope is helpful in considering this amendment. Am I right in thinking that whatever we do on this Bill it would still be open to Parliament to create the Select Committee on human rights that has been promised or indicated in the Government's White Paper on the Human Rights Bill, and that that Parliamentary Select Committee could be given the function, if Parliament so wished, of scrutinising measures of the Westminster Parliament to ensure that they are compatible with human rights in the wide sense?

Lord Williams of Mostyn

I am obliged for that helpful indication. As the noble Lord will know, the noble and learned Lord the Lord Chancellor said in his Second Reading speech in introducing the Human Rights Bill in your Lordships' House—I paraphrase, I think fairly, as I had something to do with the drafting of the measure—that we would give a fair wind to any proposal to set up either a Commons committee, a Lords committee or a Joint parliamentary Committee to deal with these matters. That remains the Government's position. It seems to me that that Joint Committee—if it is set up—would have whatever remit it decided was appropriate at that time. I am happy to give that understanding.

Lord Hylton

I am grateful for everything that has been said on this group of amendments. I should have underlined earlier that the Belfast agreement at paragraph 5 on page 17 specifically refers to the submission of Bills in draft. I can go along with the suggestion of the noble Lord, Lord Lester, that the submission of these Bills in draft should, or might be, covered by standing orders of the Assembly. I do not think there is anyone in this Chamber—I stand open to correction, however—who can deliver such a commitment on behalf of the Assembly. Having said that, it is quite possible that the drafting of the noble and learned Lord, Lord Archer of Sandwell, is superior to mine. I have an open mind on that. However, I should now withdraw Amendment No. 135. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 136 not moved.]

Lord Archer of Sandwell had given notice of his intention to move Amendment No. 136A:

Page 26, line 10, leave out subsection (3) and insert— ("(3) The Executive Committee shall refer all proposed Bills to the Commission in draft. (3A) The Commission may advise the Assembly whether a proposed Bill is compatible with human rights as the Commission thinks appropriate. (3B) The Assembly shall take such advice into account when considering the proposed Bill.").

The noble and learned Lord said: It is a lesson which I learned long ago, but constantly forget, that the longer one's amendments, the longer is the flank which is exposed to attack. What I really wanted to propose was that the commission may respond rather than shall respond. However, I promise to read carefully what my noble friend has said. For the moment I shall not move Amendment No. 136A.

[Amendment No. 136A not moved.]

[Amendments Nos. 137 and 138 not moved.]

Lord Williams of Mostyn moved Amendment No. 139:

Page 26, line 24, at end insert— ("() For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.").

The noble Lord said: In moving Amendment No. 139 I wish to speak also to Amendment No. 140 in the name of the noble Lord, Lord Hylton. Government Amendment No. 139 states: For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient". This amendment has been tabled in response to many representations that have been made to us. We found the arguments to be persuasive and therefore adopted them and incorporated them in this amendment. Above all, it is designed to be a facilitating amendment. As I said, we have had many representations. They were carefully considered and we found them to be persuasive. The commission may want to consult affected individuals. It may want to carry out research into specific incidents, or indeed a pattern of activity.

The basis of Amendment No. 140 is that the commission may have certain powers, including the power of compulsion in respect of the attendance of witnesses and the production of documents. A number of noble Lords have on different occasions said that the commission should be able to obtain information under compulsion if necessary even where no individual is alleging that his or her human rights have been breached or even where no case is being brought before the courts. Not all, but a number of Northern Ireland parties have supported that. We do not want the commission to be a toothless body. However, our overriding purpose is to implement the Good Friday agreement. The agreement is silent as to whether the commission should have available to it formal powers of compulsion. There is a good deal of detail filled in about where the agreement is silent. However, in all significant areas we have looked for—and by and large have achieved—consensus.

My honourable friend the Minister of State has had extensive consultations with the parties to the agreement. Most supported the sort of powers advocated in this amendment. However, we do not believe that there is a sufficient consensus. Therefore, having come to a fairly careful conclusion, we believe it would be wrong to re-open this issue. We are sympathetic to the point underlying Amendment No. 140. I know that and understand it well even before the noble Lord develops his theme. However, we believe that it is wrong to proceed in this Bill where there is not a sufficient consensus. I hope that our open-minded view on Amendment No. 139 may reassure noble Lords that to press Amendment No. 140 at this time would not be sensible or prudent. I beg to move.

Lord Hylton

I submit that my Amendment No. 140 is superior to Government Amendment No. 139 on two grounds. First, it is slightly more precise in that it limits investigations to breaches of the Human Rights Act 1998 and to offences arising under Clauses 61 and 62 of this Bill. That might well be far enough to go, at least during the first two years of the new commission's existence. I should add that Clauses 61 and 62 are specific to Northern Ireland, concerning as they do discrimination and unlawful oaths.

Secondly, my amendment has teeth in it, unlike that of the Government. These would enable it to compel the attendance of witnesses and the production of documents in ways similar to those that have always been available to the High Court. My understanding is that the Fair Employment Commission and the ombudsman already have similar powers at the present time. I cannot see how the human rights commission can be sure of properly investigating uncooperative people without such powers. I believe that the comparable commission in Australia has such powers but in practice has been able to use them only sparingly.

If on consideration the Government conclude that some saving for national security in Northern Ireland is required, I should be willing to consider a further amendment. I commend my amendment to the Committee.

Lord Archer of Sandwell

My noble friend has again been handsomely forthcoming. I hope that he will not think that some of us who are pressing him to go further are simply being tiresome. I appreciate the argument that it might be counter-productive to press the matter further than the agreement goes. I take that point fully on board. Perhaps I may suggest that when my noble friend comes to reflect on this matter there is an argument on the other side; namely, the disaster that would follow if it transpired that the commission was ineffective. It needs to have an effective path to investigate if it is to fulfil its other functions.

Let us briefly examine three of its functions. It is there to provide advice to the Secretary of State and to the executive committee. It is difficult to see how it can do that effectively unless it can investigate where the breaches are occurring. Otherwise, the advice is likely to be concerned not with the real world but with a somewhat academic exercise—I say academic exercise, but I must break myself of a habit of calling something academic when I mean that it does not really matter. I apologise to my academic friends. It would be a somewhat theoretical exercise.

Its second purpose is to give assistance to individuals. Again, that assistance is presumably with regard to pursuing specific complaints. How is it to decide what complaints should be pursued, and how, if it cannot investigate effectively?

Thirdly, it is to promote understanding and awareness of the importance of human rights. That can be effective only in relation to matters where human rights are being infringed or denied. This is not about understanding of a set of jurisprudential principles; it is about respect for the practical needs and feelings of individuals in everyday life.

Those purposes embrace a wide spectrum of situations. Some will require only a very minor investigation: they may require listening to someone making a complaint or asking someone questions to which the answers will be readily forthcoming. They may entail a much wider investigation, requiring people to give advice, information and assistance. I hope the powers would be used with restraint. Unless they are available where they are needed, it may well transpire that the commission will be ineffective. I do not say that dogmatically. I hope that the noble Lord, Lord Hylton, will not press his amendment tonight, but that is a question for him. This is a matter on which we should all reflect; the arguments are by no means all one way.

9.15 p.m.

Lord Lester of Herne Hill

I speak in the same spirit as all who have spoken so far in the debate. We are all trying to make these provisions in the Bill effective without going further than is necessary.

I greatly welcome Amendment No. 139, which shows precisely the open-minded attitude that Ministers have indicated in this Chamber as regards this part of the Bill. The problem with the amendment is that, although it empowers the human rights commission to, conduct such investigations as it considers necessary or expedient", it does not spell out any specific powers that are needed when the going gets tough.

I have hesitations about giving any body subpoena powers. We did it in respect of the equal opportunities commissions, the commissions for racial equality, the fair employment commission and, I think, the Ombudsman for Northern Ireland. Those subpoena powers have been carefully drawn so that they apply only in cases of suspected unlawful conduct, and they are subject to judicial control. In other words, there has to be, where necessary, an order from a court of competent jurisdiction before the powers can be exercised. Those safeguards seem to me to be essential. As the noble Lord, Lord Hylton, said, bodies that have these powers have rarely found them necessary in practice. The existence of the powers usually induces sensible bodies and individuals to co-operate without the powers having to be exercised. I can think of scarcely a single instance since the mid-1970s when subpoena powers have been necessary, but their existence in carefully defined circumstances has undoubtedly promoted the effectiveness of an investigation.

If we resist the spirit of Amendment No. 140 and do nothing to add to the provisions in Amendment No. 139 during the Bill's passage through this House, a strange situation will result. The equality commission, which will inherit the powers of the existing equality agencies, will have subpoena powers under the fair employment, sex discrimination and race relations legislation. Under the terms of Clause 61, religious discrimination by a public authority is not a matter which comes within the remit of the equality commission. A public authority may be discriminating on religious grounds in breach of Clause 61, but there are to be no subpoena powers where there is suspected unlawful conduct in breach of that clause, yet subpoena powers are to be enjoyed by the equality commission where there is suspected unlawful religious, sex or racial discrimination by an employer. I do not believe that that makes much sense. I believe that we should try to produce rational and consistent powers to make absolutely sure that there are safeguards for those who are being investigated and we do not make martyrs of people by giving excessive powers or inadequate judicial protection.

In short, I strongly support the Government's amendment and also the amendment moved by the noble Lord, Lord Hylton. However, I believe that further consideration should be given to ways of tightening up the provision so that the human rights commission is endowed with no more powers than are strictly necessary to ensure the effectiveness of its investigations. Obviously, to have access to relevant information is crucial, and when dealing with a recalcitrant, cantankerous, obstinate or stupid respondent the commission requires reserve powers to deal with the matter. One hopes that those powers will never be exercised, but if they are not put into the Bill at all one may produce an ineffectual commission which will be a tragedy for the whole enterprise.

Lord Molyneaux of Killead

In all such matters I bow to the sound judgment of the Minister and other noble Lords who are learned in the law. One wonders whether the Amendment No. 149 powers undermine to some extent the judiciary in Northern Ireland. Noble Lords with first-hand knowledge of legal matters in Northern Ireland will concede that the Northern Ireland judiciary has been the one solid rock throughout all the decades of troubles.

I agree with the Minister that the Government have an obligation to implement the Good Friday agreement in full. I suggest that there are some serious dangers if they go beyond that into what has been very reasonably proposed by the noble Lord, Lord Hylton. The commission would be under constant pressure to use these draconian powers if Parliament granted them and it would be very difficult for it to resist all-corners. To revert to a point made earlier by the noble Lord, Lord Monson, I am afraid that this may become something of an industry.

As to the matter raised by my noble and learned friend Lord Archer, based on first-hand knowledge of the situation in Northern Ireland in which he has taken a very great interest he will admit that in its previous incarnation the Advisory Commission on Human Rights, which is now to be phased out, has proved to be extremely effective. I am equally optimistic and hopeful about what is proposed in the Bill.

Lord Kingsland

The Opposition support Amendment No. 139 and congratulate the Government on introducing it. As far as Amendment No. 140 is concerned, I am inclined to the view expressed by the noble Lord, Lord Molyneaux, rather than that expressed by the noble Lord, Lord Lester. As time goes by it may well be desirable to put flesh on the generally expressed power to investigate under Amendment No. 139; but we should move towards that in stages and react to the experience of the commission over time.

It strikes me that the drafting of Amendment No. 140 almost produces an institution that mirrors the powers of a court. So trenchant are these powers that, were they ever introduced, it is to be hoped that the exercise of them would itself be subject to the human rights provisions.

Lord Williams of Mostyn

I am a member of the Northern Ireland Bar. I am more than happy to endorse what was said courteously by the noble Lord, Lord Molyneaux. The judiciary in Northern Ireland over the past 25 years has been a body of extraordinary courage, quality and independence. Every lawyer to whom I have ever spoken, whatever his private political beliefs, has been able to endorse that.

Amendment No. 139 gives a wide remit, and that is deliberate. I take the point about Australia. I am familiar with the Australian commissioner, Mr. Sedoti, who has done excellent work. But in Northern Ireland at present we are inching forward slowly by consent.

I think that I can say four things which should be of assistance to allay some fears. First, the Government will fully co-operate with any investigation undertaken by the commission. We will provide it with any information and any necessary documents subject only to proper adequate arrangements to protect information where confidentiality is necessary to safeguard national security, public safety and public order. I believe that that is an important undertaking which I willingly give.

Secondly, if the commission considers that it is being truly frustrated in obtaining the necessary information, we would expect the commission to say so robustly and to draw that to the attention of Parliament and the Assembly in the context of a failure to co-operate. It is then open either to the Assembly or to either House of Parliament here to take up the investigation and use its own powers to compel witnesses and the production of documents. We would not expect the commission to be shy in doing that.

Thirdly—I make this absolutely plain—the Government have not closed their mind on this issue. Indeed, we are sympathetic to the arguments advanced by noble Lords. That is why we brought forward amendments to require the commission, not later than two years after its establishment—it is a quite tight timescale—to review the adequacy of its powers. This is not the long grass syndrome; quite the reverse. Two years is quite short in the lifetime of such a commission.

Fourthly, if the commission reported that it had been frustrated in carrying out its work, we believe that that would offer a powerful case for legislation to deal with the absence of the powers. And if there were broad consensus among the Assembly that the commission should have additional powers, I undertake that the Government will look sympathetically at legislation to provide them.

I think that the wide remit and those four observations and undertakings I have given are pretty strong and, I hope, acceptable.

On Question, amendment agreed to.

Clause 54, as amended, agreed to.

Lord Hylton moved Amendment No. 140:

After Clause 54, insert the following new clause—