HL Deb 26 October 1998 vol 593 cc1693-715

3.23 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Dubs.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 58 [The Equality Commission for Northern Ireland]:

Lord Dubs moved Amendment No. 151A:

Page 28, line 9, leave out ("members") and insert ("Commissioners").

The noble Lord said: This group of amendments concern our proposals for a new equality commission, a powerful independent organisation, appointed by the Secretary of State, which will exercise a broad range of executive responsibilities for equality issues in Northern Ireland. Some of these are responsibilities which already exist in law under Northern Ireland anti-discrimination legislation. Those responsibilities are performed at the moment by the Fair Employment Commission for Northern Ireland, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council. It will also have new responsibilities consequent upon Clause 60 which imposes on the Northern Ireland public sector the statutory duty to have due regard to the needs to promote equality of opportunity throughout their activities.

In the course of the summer we have consulted with the Northern Ireland political parties and specialist organisations about our proposals. There will be government amendments before the House today which will reflect the outcome of those discussions. The requirement to prepare equality schemes will be imposed directly on public authorities without the need for an initial request from the commissions.

Other amendments will change the title of those who serve on the equality commission. We expect on Report to bring forward further amendments on the application of the equality obligation to UK departments and UK-wide public bodies operating in Northern Ireland and to expand the detailed provision for impact assessments in equality schemes. The Government will soon set up a working group under an independent chairman, on which the chairs of the four existing equality bodies will be invited to serve. That working group will plan for the creation of the equality commission.

Separately from the Bill, the Government recently announced early legislation on changes to fair employment law, including its extension to the provision of goods, facilities and services and the disposal of premises. Therefore, there is much happening in terms of the equality agenda, not to mention current consideration at national level of changes to gender, race and disability anti-discrimination laws. At this historic time for Northern Ireland the Government re-commit themselves to equality of opportunity across a broad front and to the bodies of law which have been developed to tackle discrimination in the field of religion, gender, race and disability.

Now I turn to specific amendments on Clause 58 and Schedule 9. These amendments deal with the relationship between the equality commission, the Secretary of State and the Assembly. The noble and learned Lord, Lord Archer of Sandwell, has tabled a series of amendments which should have the effect of altering those relationships so that routine control and financing will be the responsibility of the Secretary for State and Parliament.

I shall take this opportunity to set out the future status of the equality commission, as the current version of the Bill is not clear on this subject. However, amendments which have been tabled to Schedules 2 and 3 should clarify the position. Under the Good Friday agreement the Assembly is to exercise legislative and executive authority over matters within the responsibility of the Northern Ireland departments, with the possibility of taking on responsibility for other matters. Anti-discrimination laws on fair employment, gender, race and disability have been the responsibility of Northern Ireland departments—currently DED and DHSS—since they were enacted. That means that those areas of law and the current functions of the Fair Employment Commission for Northern Ireland, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council are transferred matters under the agreement.

The amendments to Schedules 2 and 3 make clear that the references to the functions of the four bodies in the Bill do not affect their transferred status. Those amendments also clarify that the bulk of Clauses 58 to 60 and Schedules 9 and 10 are reserved matters. The equality of opportunity obligation and the equality commission did not exist at the time of the Good Friday agreement. The Secretary of State will have policy responsibility for the equality of opportunity obligation and a number of specific functions in relation to equality schemes at Schedule 10.

The existence of the equality commission as an institution is a reserved matter. The Secretary of State has power to appoint its members. The bulk of its day-to-day activities will continue to be concerned with the existing anti-discrimination legislation, so it will be funded by the Assembly and it will be under the departmental oversight of the Department of Economic Development. That makes the commission something of a hybrid. But the Bill achieves a balance which preserves an important role for the Secretary of State.

Local Northern Ireland politicians will have to co-operate in the Assembly. The Bill contains checks and balances and built-in protection which will encourage consensus rather than division in the Assembly. Local institutions must be allowed the opportunity to play their role in the field of equality.

In relation to Amendments Nos. 294, 295 and 296, we accept that there is a need for the commission's annual report to be laid before Parliament as well as before the Assembly. Government amendments to this effect will be prepared for Report stage. Therefore, I shall invite the noble Lord to withdraw his amendment.

I turn now to government Amendments Nos. 151A to 151D, 290A to 290D, 291A to 291C, 292A, 293A, 297A, 307A to 307K. Many of these are technical. However, several of them change the title of the members of the equality commission. Instead of a chairman there will be a chief commissioner, with at least one deputy chief commissioner. Ordinary members of the commission will be known as commissioners. That will bring the titles of those serving on the commission more closely in line with those of the Northern Ireland human rights commission, which should further enhance the status of the equality commission.

Other government amendments ensure that the commission cannot only employ staff but can also pay pensions and hire consultants. Amendment No. 297A provides for expenditure by the commission to be defrayed from Assembly appropriations. Amendments Nos. 307A to 307K reflect the normal way in which bodies are listed for the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975. Commissioners, deputy chief commissioners and its chief commissioner will not be able to sit in the House of Commons. I beg to move.

3.30 p.m.

Baroness Turner of Camden

I thank my noble friend for his explanation of that series of amendments. Like many of your Lordships, I have been lobbied by a number of Northern Ireland organisations, including the Equal Opportunities Commission for Northern Ireland. I understand that the Government may wish to have one equality commission, instead of a number of small quangos dealing with different aspects of discrimination. Certainly it would appear to be cheaper administratively to have one body. But it would appear that during the consultative process practically everyone was against the merger of existing commissions into a new, enlarged body. The EOC for Northern Ireland in particular opposes a merger of existing equality bodies. It is natural that people will want to protect their own patch and very often people are likely to oppose change. Nevertheless, the EOCNI has some valid points.

It points out that in Northern Ireland there is routinely discrimination against women, who make up over half the population. It believes that women are best served by an organisation which focuses precisely on their needs, as we have in the United Kingdom. There is a real fear that sex equality is likely to be marginalised, particularly since the new commission will come under the purview of the Northern Ireland Assembly—as already explained by my noble friend—rather than, as in Scotland, being directly answerable to the Government at Westminster. That is referred to in other amendments.

I have the impression that the Government's mind is made up on the issue of the equality commission and the merger of existing bodies. If that is so, it becomes even more important that the functions of the equality commission should be clearly set out and the areas of discrimination for which it has responsibility set out clearly on the face of the Bill. However, I should be grateful if my noble friend would be good enough to explain to the Committee why the Government felt it necessary to ignore the representations being made during the course of consultations by a large number of bodies in Northern Ireland and to go for an overall equality commission.

Lord Lester of Herne Hill

I too am grateful to the Minister for explaining this position to the extent that I am capable of understanding the explanation off the cuff. I shall want to read carefully the detail of what he said. Even though I am a lawyer, I find difficulty in trying to unpack the human rights equality provisions of the Bill, read with the Northern Ireland Constitution Act and the other underlying equality legislation.

When one asks the way to Skibbereen in West Cork, one is normally told, "If I were you, I would not start from here"! The problem is that we are starting from a pretty flawed situation. It may be helpful, in order to explain the position taken by these Benches, if I first explain what we welcome in the Minister's statement as we understand it and what still remains for consideration.

It is most welcome that there is to be a working group to look at the ways in which the equality agencies in Northern Ireland will be co-ordinated into a more effective equality commission, which we believe to be the Government's intention. It is welcome also that the equality agenda right across the United Kingdom will look at the incoherence, inconsistency and weak enforcement of the existing body of equality legislation, if that is what the Government intend, which we understand it is.

It is welcome also that the equality commission will now be reporting to Parliament as well as to the Assembly in Northern Ireland, as I understand the Minister. It is welcome too that the policy responsibilities for Clauses 60 and 61—the statutory duty on public authorities to promote equality of opportunity and the provisions forbidding religious and political discrimination by public authorities—are to remain within the remit of the Secretary of State. As I understand the Minister, therefore, there will be Secretary of State oversight of Clauses 60 and 61.

So far very good indeed. What then are the remaining problems? The first goes back to the Northern Ireland Constitution Act 1973; that is, it only forbids religious and political discrimination by public authorities in Northern Ireland, and the definition of discrimination is confined to direct discrimination. We will be returning to that later. I should explain that I am speaking to all the amendments grouped with Amendment No. 151A on the Marshalled List.

The second problem, as the Minister said, is that there was no equality legislation in 1973 when the Northern Ireland Constitution Act was passed and therefore the entire subject of the devolution to the Northern Ireland Assembly and Executive of equality issues has to be looked at with fresh eyes. The problem is that on one reading of the Bill as it stands, equality legislation is not to be devolved at all; it is to remain a Westminster responsibility. I realise now that that is not the Government's intention. As I understand it, the Government's intention is that the administration and responsibility for the equality law in relation to gender, race, disability or religion is to be devolved, but that the Secretary of State will retain his responsibilities under the policy in Clauses 60 and 61.

The point of concern about that for us is that, whatever the deliberations may have decided, politicians who represent majorities and minorities may not be sufficiently sensitive to the needs of minorities, including women seen as a minority, ethnic minorities and the disabled. When one simply devolves holus-bolus equality legislation to the Assembly, it may be excellent in dealing with ancient problems of religious and political discrimination, but it may not be excellent in dealing with other forms of discrimination.

We regard the right to equal treatment without discrimination as a basic constitutional right that should be the same, giving the same protection and the same enforcement, in whichever part of the United Kingdom or Ireland one happens to live. Those are part of our basic human rights derived from our inherent humanity and from the international codes on human rights by which we are bound.

If there is not to be a continuing responsibility and veto of power by the Secretary of State, and if there is to be weakening of the equality code by the Northern Ireland Assembly—I speak entirely hypothetically—we want to be sure that there cannot be any weakening of the equality code dealing with any of those forbidden grounds of discrimination. That is why in a later amendment we are at least urging that the Secretary of State should have oversight by placing the matter in Schedule 3, if not Schedule 2, as a reserved matter if not an excepted matter.

That is one large problem. The subset of that problem is with regard to the equality commission itself. We welcome the changes in nomenclature in the Government's amendments. They use the same language as is being used by the Human Rights Commission. But we hope that by the end of these proceedings the equality commission will have a no less favourable constitutional status than does the Human Rights Commission.

Finally, it goes without saying that we also hope that the Government will make available the same assistance for people seeking to enforce their human rights and their equality rights in the courts of England, Wales and Scotland as they are making available in Northern Ireland. It is completely inappropriate that these provisions should come into force without any public interest fund, without a human rights commission and without anything else during the long hiatus before the Human Rights Bill comes into force in 2000.

I hope I have explained our position. We support the Government's amendments. I have spoken to our amendments and suggest that these are matters that require further consideration on all sides. I apologise for having taken so long.

Lord Rix

I was going to speak to Amendment No. 153 but I understand that the Minister is not minded to accept that amendment. It therefore seems appropriate to follow the noble Lord, Lord Lester of Herne Hill, with one or two suggestions with regard to the equality commission. I hope that the Minister will be able to give further assurances to Northern Ireland disability organisations that disability issues will enjoy equal billing on the equality agenda.

As the Minister is all too well aware, disability issues are complex and varied. I hope he will be able to give the following assurances. Will additional staff with particular expertise in disability matters be recruited onto the equality commission? Will additional resources be set aside to enable the commission to do its work in relation to disability issues and to ensure representation and advocacy, particularly for people with learning disabilities?

There are other measures that will give assurances to organisations that are of and for people with disabilities. Will the Government confirm that all staff on the commission will undergo disability awareness training? Will they also ensure that the new body has a meeting with Northern Ireland disability organisations on an annual basis in order to monitor and review the workings of the new equality commission? Finally, will the commission be asked to publish details of the links it has made with disability organisations and the number of inquiries it has received from people with disabilities?

I am sure that if these reassurances are given they will ensure that the needs and rights of people with disabilities, including learning disabilities, will not be subsumed or lost in all other matters and therefore that Amendment No. 153 will in fact become redundant.

Baroness Lockwood

I think I welcome the Minister's statement, but, like the noble Lord, Lord Lester, I shall need to read in Hansard exactly what he said. I saw the amendments for the first time when I came into the Chamber today so I am not quite sure just how wide the implications are. Perhaps I may ask my noble friend a number of questions. He said that the equality commission will be a reserved matter, and that is certainly to be welcomed. He also said that the equality commission will be concerned largely with the present equality agencies—the Northern Ireland Equal Opportunities Commission, the Race Relations Commission and, I assume, the disability commission. However, as has already been pointed out, the powers of those three commissions vary to some extent. I wonder what my noble friend's amendment will mean. Will it weaken in any way the powers that already exist under the Equal Opportunities Commission? If so, I would be very saddened about that.

During my period as chairman of the Equal Opportunities Commission in Great Britain from 1975 to 1983 we worked closely with the Northern Ireland commission. The powers were exactly the same. It is important that throughout the United Kingdom the same sex discrimination laws should apply. I hope that there is no weakening of the Northern Ireland order which took for Northern Ireland the powers of the Sex Discrimination Act. I should like further clarification on that point from my noble friend.

There is also the whole question of resources. My noble friend Lady Turner referred to the concerns that are felt by women's organisations in Northern Ireland. I understand those concerns and I, too, have had representations on this issue. As long as it is clearly laid out what the powers of the equal opportunities side of the equality commission will be, and as long as they are not weakened, I do not oppose the question of an equality agency. But I think it is important that we spell out the safeguarding of the resources and the functions. Like the noble Lord, Lord Lester, I think it is absolutely essential that the concept of indirect discrimination is embodied in this legislation. If that is not done we shall lose a great many of the benefits that have been brought about over the past 22 years. I should like some further reassurances from my noble friend on those points.

3.45 p.m.

Lord Molyneaux of Killead

I agree that we must look much wider than the actual text of these various amendments. The grouping—one might call it a "supergrouping"—of the amendments as distinct from what appeared in the original Marshalled List will, to use an Irish saying, considerably shorten the winter. I do not question the list of possible complainants set out in various places, particularly in Clause 60 and in an earlier amendment, Amendment No. 154, tabled by the noble and learned Lord, Lord Archer. If those categories have a bearing on Clause 61—and on the government amendments, supergrouped as they are—it may be that there should be some kind of mechanism to enable the Government to add to the list of aggrieved persons and categories, which now run at roughly two added groupings a year. It might be something of a nonsense if we had to come back to Parliament every six months to seek approval to add on yet another aggrieved group. I hope that some thought can be given to that point.

The noble Lord, Lord Lester, stressed the inevitability of our seeing this on a much wider canvas than just the various clauses of the Bill. That being the case, I wonder whether it might not be fairer to the taxpayer to introduce some form of financial assistance to what I would call the defendant bodies to enable them to break free from the pernicious practice of settling a claim right at the very beginning to avoid the expense not only of legal representation but of the diversion of key members of staff from essential duties leading to the engagement of additional staff and therefore placing an added burden on the taxpayer. For example, the board of a hospital group might be tempted to take the easy way out and settle even vexatious claims.

That disturbing habit is creating a thriving industry in Northern Ireland. One paramilitary organisation to my knowledge—I am sure there are plenty of other examples—has a desk staff to deal with the giving of advice to all-comers who feel that they have a complaint, bogus or otherwise. Callers are given certain directions. If they say, "We are not certain whether we have a good claim", the advice from the paramilitary body is, "Go ahead, you are bound to get something". Then the rider is added, "Do remember that when you succeed we will need our cut out of the proceeds". That is a very unhealthy situation.

Lord Lester of Herne Hill

Is the noble Lord aware that there is another side to the coin? It is that public bodies which do not settle cases but insist on fighting them to the bitter end often incur much greater public costs as a result, enriching my profession—the legal profession—unnecessarily. Does he know, for example, that the Ministry of Defence incurred costs of many millions of pounds of taxpayers' money by continuing to insist on the ludicrous practice of dismissing female members of the Armed Forces who became pregnant? Had they settled at a very early stage, they would have saved us a very great deal of money. Therefore it is sensible to settle, if you have not got a very strong case.

Lord Molyneaux of Killead

I am grateful to the noble Lord, because he makes my point. In the case of a hospital board, it is not a question of sitting down and deciding whether they have a good case or whether they have a poor case. They will say, "Good gracious, we are going to a disruptive element injected into our proceedings"—and I do not mean the complainant, but the fact that it is superimposed on an already over-burdened hospital staff. So they say, "We will take the easy way out and we will settle because if we fight it through the courts we will incur a much greater burden".

I am simply saying that what I call the pernicious practice of settling right at the very beginning, whether they feel they are going to win or lose, is something that we really must try to stamp out because ultimately it puts an intolerable burden on the taxpayer.

I was going to thank the noble Lord, Lord Lester, for the points he made earlier. He stressed the need for adequate funding for complainants, but I am suggesting that some way really must be found of making good the losses of public bodies. I am not talking here about private firms or private bodies, but about public bodies. Unfortunately, because of the way in which the system is being distorted and misused, the public bodies are finding it very difficult. I trust that perhaps consideration could be given to these aspects before we come to the rest of the proceedings on the Bill.

On Second Reading I perhaps prematurely congratulated the Government on their use of modest titles, mainly for the equality commission, on the grounds that the use of words like "members", "chairman", vice-chairman" and so on would create the perception that as a body and as individuals they would be readily acceptable and approachable. I now find it difficult to understand why the Government have elevated the body to the stratosphere. Considering the pressure from the bodies which are now to be disbanded and feel aggrieved because of that decision, and the views that have been put forward by other noble Lords, those bodies expressed fears that their interests would be submerged in some kind of super quango. These amendments surely justify those fears: that is, the government amendments.

Can the Minister indicate what lay behind these amendments and what persuasion was applied to the Government to induce them to move away from the sensible and clearly understood titles of "chairman", "vice-chairman" and "members" of the commission to these other grandiose titles which I am afraid give the wrong impression of the role of the commission itself? Originally the Government did not want them: otherwise they would not have been printed as they were in the Bill. Therefore I would ask: who did want the increase in prestige? Was it considered that commissioners, and not members, deputy chief commissioner and not simply deputy chairman and commissioners instead of members—all these high sounding titles—might command a much higher salary? Is it just possible that the Treasury might be more likely to consider it proper to award a commissioner a salary double that of a member? I really think that we are entitled to an explanation as to why all these wonderful titles should have been introduced into a Bill which otherwise made a lot of sense.

Lord Skelmersdale

I congratulate the noble Lord, Lord Molyneaux, on returning to the amendments before us. The Minister may have been mildly surprised, as I was, that this very large grouping of amendments has in fact given rise to a clause stand part debate which I was preparing to speak on fractionally later in our proceedings. However, as the debate appears to be on clause stand part, I find it very curious that not one speaker has referred to the Good Friday agreement. I do not have a copy in my hand but, if I recall the words correctly, that agreement says that, subject to consultation, there shall be essentially—I cannot remember the exact words—an equality commission for Northern Ireland.

We all know that there has been considerable consultation over this matter. We all know that in certain quarters, not least among some of the chairmen and chairwomen of the current constituent parts, there has been expressed a certain amount of disagreement and a certain amount of worry. Are those people for whom they are currently acting going to be looked after properly under these new arrangements?

Then we heard last week from the noble Lord, Lord Fitt, that the Minister had sent a letter saying that this consultation was still continuing, which I must admit was news to me. We also heard last week that the Northern Ireland agreement, as far as the Assembly was concerned, was not set in stone and that various bits could be altered, albeit by cross-party agreement, as the noble Lord said. This would be done by the Assembly and, although we have not yet discovered which bits are to be altered, I have no doubt that during the course of this Committee stage we shall discover which they are. Nonetheless, he also wrote to my noble friend Lord Cope on 14th October: We expect that the Bill will make clear that Clauses 58 to 60 will be reserved matters for which the Secretary of State will have responsibility"— which is exactly what he said today in his opening speech— on which the Assembly may legislate with the permission of the Secretary of State". That is quite clear. However, the existing bodies of law on fair employment, general equality, race relations and disability discrimination in Northern Ireland will remain transferred matters"— in which case the Assembly, with cross-party agreement, can presumably do what it likes. Presumably in those areas it can give instructions to the new equality commission and basically it can change the law as far as Northern Ireland is concerned on those matters.

That begs the question: what exactly is the Secretary of State hanging on to? Where do the Government see the position ending up? On one side you have reserved matters for the Secretary of State and the Government at Westminster and on the other hand you have what I suppose could be called almost interference by the Assembly, with cross-party agreement, in parts of those matters which I regard as being semi-reserved. That cannot be a satisfactory situation for anybody.

Lord Cope of Berkeley

This debate, as my noble friend said a moment or two ago, has rather widened from the individual amendments and I propose to go along with that widening, as it were, and say one or two general things. I am doing my best to support the Belfast agreement, as I understand it, throughout this whole process and I am prepared indeed to give the Government a certain latitude on the matter in view of the background to this Bill. Certainly we want the whole process, usually called the peace process, to continue and indeed develop. But that is a very different thing from giving the Government carte blanche to legislate, which obviously we should not do.

I am grateful to the noble Lord, Lord Lester, for admitting at the start of what he had to say that even he, with his legal expertise, and particularly his expertise in these matters, finds it extremely difficult to unravel exactly what is happening in the Bill and what the Minister said a few moments ago. He said that the policy on these matters will be a reserved matter.

We know that a reserved matter is something which is not devolved immediately but will be devolved at some time. It is a different use of the word "reserved" from the use in the Scotland Bill. The words "excepted matters" are used in that Bill. The Minister said that responsibility for the policy will be a reserved matter. That is exactly the same as he said to me in the letter of 14th October, which I think was sent to other noble Lords as well, namely that Clauses 58 to 60 will be reserved matters for which the Secretary of State will have responsibility. He did not say "responsibility for the time being", but that is what a reserved matter means.

So he is proposing that in due course—a year or two—these matters will be transferred completely to Northern Ireland and out of the responsibility of the Secretary of State, as I understand it. However, when we looked the other day at related or similar clauses relating to the human rights commission, it was pointed out that Schedule 2(17) specifically excepts matters for which provision is made by this Bill or the Northern Ireland Constitution Act 1973. Provision is made in Clause 59 for the functions of this new commission—the equality commission. I am open to correction—from any lawyer, in particular—but it seems to me that Schedule 2(17) means that the setting up of this commission and its basic functions are to be an excepted matter, not a reserved matter, as the Minister said. That I can understand. I think that is desirable.

We shall still be in a position where the Assembly will say what the law is. That seems to be what the Government are aiming for. Perhaps I can put it in biblical rather than legal terms. The Assembly will say, "Thou shalt not discriminate in the following ways", with a whole lot of small print following on to define it. However, the Secretary of State will still be responsible for the equality commission, which will be there to ensure that people obey the law and do not discriminate in various ways. I think that that is a desirable end but I do not think that it is the end that the Minister set out, either in his letter to me of 14th October before we began our discussion in Committee, or this afternoon. However, it may be what is in the Bill. I say "may be", but I think I am about to receive some legal advice—

4 p.m.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. An accountant and a lawyer are both trying to unpick the Bill. I have just this moment been handed a letter from the Minister. I have not yet read it, but I think it will explain some of this. The noble Lord has also received his copy.

I share the noble Lord's puzzlement. It arises because of the ambiguity of that paragraph in the schedule to which he referred. It also arises from the fact that under the Northern Ireland Constitution Act 1973, everything is devolved except that which is specifically not devolved. Of course, all the equality legislation came after 1973. However, he said that there are safeguards in Clause 4 of the Bill. I think that is not quite right. First of all, as I understand it, equality legislation policy, which is to be reserved, could not be devolved without subordinate legislation approved by both Houses. If the Northern Ireland Assembly were to use its devolved powers unconscionably, which I very much doubt, the matter could always be transferred back by the Secretary of State under Clause 4 and would become a reserved matter again.

So, as I understand it, provided there is a claw-back provision—clawing the subject back again to preserve national minimum standards of equality of treatment, protected by law—there would be that safeguard. It may not be enough but, as I understand it, that is the position.

Lord Cope of Berkeley

I entirely agree that there is the safeguard that a reserved matter cannot be transferred without the approval of Parliament in secondary legislation. I do not entirely follow the force of the second part of what the noble Lord, Lord Lester, said. As the Bill stands, I believe I am right in saying that for powers to be taken back to Westminster, it is necessary not only to have secondary legislation but also the agreement of the Assembly with cross-community support.

Lord Lester of Herne Hill

I am grateful for the correction.

Lord Cope of Berkeley

I thank the noble Lord for agreeing to that. I tabled an amendment to Clause 4 which seemed to me to be desirable, which would have meant that the Assembly did not need to agree to a power being taken back. Apart from anything else, the Assembly might be deadlocked at a certain point over what to do and the Secretary of State might want to take the power back to resolve the deadlock. I am not speaking only now about equality powers but any other powers that are involved.

As far as I am concerned, the question of taking powers back is not entirely resolved. However, it would be much clearer if the powers and the responsibility which this new body is to have were set out in the Bill instead of by reference. At the moment the Bill states that it will have the functions of the four bodies that it is replacing. If the Bill spelt out the different forms of discrimination with which the equality commission is supposed to deal, including any new forms that may be thought desirable, I think that Schedule 2(17) would certainly bring those into the "excepted" category, presumably from the point of view of making law as well as from the point of view of setting up the commission and the management of the commission.

Turning to the amendments, I am prepared to go along with the inflation of titles that is involved, although I thought that the noble Lord, Lord Molyneaux, had a point about remuneration.

Lord Molyneaux of Killead

I wonder whether the noble Lord expects that they will be fitted out with a special uniform.

Lord Cope of Berkeley

I would not mind, but uniforms have "gone out", for the most part, for what one might call persons of this class. I claim to be the last Minister to have worn Privy Council uniform on duty, but that is a different matter.

The noble Lord, Lord Molyneaux, also talked about assistance to the defending body. I have some sympathy with what he says but, as the noble Lord, Lord Lester, rightly pointed out, it is a very difficult balance to strike. I once met a chap who told me that he had worked for me not long before. It turned out that at the relevant time he had been an official of the Department of Finance and Personnel. When I asked him what his function had been and what he had looked after, he said, "Trippers". I assumed that he had had something to do with encouraging tourism. However, it turned out that his duty was to pay people who tripped over paving stones. There were an enormous number of them. Until shortly before that time, it had been the Government's habit to pay such people automatically. Some people had tripped over paving stones no fewer than eight times and had been paid substantial sums over a period of years. It was almost becoming part of the social security system. The Government therefore took the decision to oppose every case involving compensation for tripping over a paving stone. That was good because, although it led to more court cases in the short term, the matter balanced out and, after a while, the number of claims became much more reasonable. Striking a balance is difficult.

It is sometimes extremely difficult for firms, particularly small firms which become enmeshed in a case involving a former employee who complains about some form of discrimination, to resist the temptation to settle a case and thus to avoid all the hassle. That is particularly so when, as we are providing elsewhere, the claimant is likely to have behind him the full weight of the money and skill of the commission. The commission will need to bear such factors in mind when deciding who to support. I do not believe that this is a matter on which we can legislate to provide the necessary balance. The commission must deal with it as part of its responsibilities. My main question relates to what the Government see as the commission's responsibilities and whether or not they can be met by the Bill as it stands.

Lord Dholakia

I wish to make two brief points. One relates to the practicality of the timetable governing the working group. My noble friend Lord Lester welcomed the establishment of the group to consider the equality commission. I understand from the Commission for Racial Equality for Northern Ireland that the timetable is that the group will be set up in November and will report in January. However, one must bear in mind that there were more than 80 representations opposing the proposal when the White Paper on the equality commission was published. I believe that the period for consultation is very short. There should be ample time to allow organisations to make adequate representations with regard to the equality commission, so perhaps a different timescale would be appropriate.

I make my second point on the basis of my considerable experience in race relations work in this country. I was involved in such work from 1965 until about 1994. Race equality would have had no meaning if the concept of indirect discrimination had not been clearly defined. It is vital to bear in mind the restrictions of the Race Relations Act 1976 and of the 1995–96 legislation. The effectiveness of the Commission for Racial Equality would have been very limited but for the fact that this country has had a fundamental definition of indirect discrimination. I hope that the Minister will take those factors adequately into account when the process of consultation is defined.

Lord Blease

I am pleased that the noble Lord, Lord Dholakia, preceded me because he dealt with the matter more succinctly than I could have done. Part VI is an important part of this Bill. It deals with matters relating to the Assembly and the United Kingdom Government. Last Friday, it was mooted in Northern Ireland that the Secretary of State proposed to set up the working group. That was generally warmly welcomed by those who were aware of it. I know from information I received today that the equality bodies—that is, those organisations dealing with such matters on the ground—generally welcome the establishment of the working group. I am sure that when they read in Hansard the Minister's opening remarks they will recognise the great opportunities that it represents.

However, there is concern about the working group's report being available in January and about whether that gives the group sufficient time. Although it can be argued that we are coming up to the Christmas holiday period and that meetings cannot therefore be held, the bodies that have been in existence for some time want to know more about the timetable. This represents a wonderful opportunity for the Government to meet members of the working party who are to deal with the provisions of Part VI, which relates to equality and to issues that really matter in Northern Ireland. There should be the opportunity to talk to those who want to bring equality of opportunity and fairness back into society. I believe that the establishment of the working group is a great step forward in resolving a number of problems. However, I am concerned about the timescale and I ask the Minister to be flexible. I am sure that what he has said today will be warmly welcomed when it is read in Northern Ireland.

4.15 p.m.

Lord Dubs

This has been an interesting debate ranging over many aspects of the work of the equality commission. There has been something of a clause stand part debate about it. For the avoidance of doubt, perhaps I may restate what I said earlier. The existence of the equality commission as an institution is a reserved matter. The Secretary of State has the power to appoint its members. I repeat that I am referring to the existence of the equality commission. The bulk of its day-to-day activities will continue to be concerned with the existing anti-discrimination legislation. So it will be funded by the Assembly and will be under the departmental oversight of the Department of Economic Development. I have also said that that makes the commission something of a hybrid but that the Bill achieves a balance which preserves an important role for the Secretary of State. I believe that to be clear although I understand where the potential for confusion has arisen.

A number of speakers are concerned about the merger of the four bodies into one—

Lord Cope of Berkeley

I apologise for interrupting the Minister. I am grateful to him for giving way so soon in his speech. The Minister said again, very clearly, that the existence of the commission is a reserved matter. That means that potentially it can be transferred at some time; it is not an excepted matter. Perhaps paragraph 17 of Schedule 2 does not apply for some reason—I do not know—but if this is a reserved matter, that means that the expectation is that it will be transferred to Northern Ireland at some point. Am I correct in thinking that? If so, is it to be in a long time, or is it expected to be in a year or two?

Lord Dubs

First, perhaps I should say that I shall have something to add about paragraph 17 of Schedule 2 in a few minutes. However, the fact that a topic is a reserved matter means that there is a possibility that at some point it will pass to the Assembly. There is no way in which I can foresee when that will happen; nor can I guarantee that it will happen at all. This is, however, certainly one of the powers which has the possibility of being transferred. Perhaps I may deal with Schedule 2 in a few moments—

Lord Lester of Herne Hill

I am extremely grateful to the Minister for giving way. Perhaps I may press him because of our concerns. Does the noble Lord accept that there would be very widespread concern if the basic core guarantee of equal treatment without discrimination were to be diluted in one part of the country, namely, Northern Ireland, as a result of the matters being transferred by this Government or a future government? Does the Minister accept that that would be quite wrong and that we should have a basic, core, minimum standard of treatment throughout the United Kingdom so far as non-discrimination is concerned?

Lord Dubs

Perhaps the noble Lord will bear with me for a short while. I shall try to deal with his point in a few moments. Perhaps I may first take up a point made by my noble friend Lady Turner regarding support for the proposal to merge the four organisations into one. Yes, I can tell my noble friend that there was consultation and, indeed, 45 per cent. of the comments were against. But that was not a majority: some people were in favour, some did not have an opinion and others had reservations. It is important to point out that both the Fair Employment Commission and the Northern Ireland Council of Voluntary Action, which is the largest umbrella group for the voluntary sector, were both in favour of the particular change. The Government took the view that this was an important change.

Let us remind ourselves that the population of Northern Ireland is a small one; indeed, it comprises 1.6 million people. There is a danger that the effectiveness of work against discrimination may actually be hampered by having too many bodies, all of which have to have their own administrative set-up, their research facilities, statistics, and so on, rather than using the money on the actual work that they intend to do. I suggest that there are good arguments for having the bodies merged together.

I was also asked about certain assurances. The equality commission will certainly have the power to establish consultative councils which will allow links with voluntary organisations in any of the fields covered by the commission. There will be a requirement on the commission to aim to secure an appropriate division of resources between the functions previously exercised by the four statutory bodies. Moreover, that is to be demonstrated in the commission's annual report so that there will be transparency in the way that the commission is to proceed. As many noble Lords said, a working group is being established in November to advise on the format and structures of the new commission. It will comprise the chairs of the four bodies, plus an independent working group chairman, although that individual has not yet been selected.

I understand the force of the comment made by the noble Lord, Lord Dholalkia, that perhaps the period proposed for consultation is not a very long one. However, I am reluctant to allow that period to stretch out for too long. After all, the bodies which will be consulted and which will have an input are the same ones that have already been consulted and, I suggest, are those which are already lobbying Members of this Chamber very assiduously. Therefore, I should not have thought that there would be very many new issues coming forward. I note what the noble Lord said, but I do not want to concede that I will extend the consultation period. In my experience, extending consultation periods in Northern Ireland simply gives people more and more time and I am not sure that it actually leads to a more effective consultation process.

I hope that those assurances will make Members of the Committee realise that the Government are very committed to the different elements which will make up the new equality commission. I repeat: we certainly do not want to see a hierarchy of work or a hierarchy of priorities. Indeed, that is not the way we want to move forward. I can assure my noble friend Lady Turner that the question of sex equality will in no way be marginalised. We do not want to marginalise any of the areas of responsibility of the new commission—far from it. We want the new commission to have as much effectiveness as is possible.

I was asked a number of detailed questions and I shall try to deal with them in the order in which they were put. The noble Lord, Lord Lester, quoted the west Cork anecdote—namely, that if one was trying to get somewhere one would not start from where one was. We are at the Good Friday agreement; we are at the point that we have reached. I appreciate that that causes some difficulties in terms of understanding how everything will operate.

I believe that the noble Lord suggested that, somehow, local politicians would renege on the commitment to tackle discrimination and achieve equality. He certainly did not have the sort of confidence in the equality commission, because it will be under the Assembly, that I believe he would feel if it came under Westminster. I believe that that was the thrust of the noble Lord's argument. I simply tell him that responsibility for the functions of government will be with the Assembly. It seems to me that it would be wrong in principle to then take the oversight of those functions as regards equality away from Northern Ireland and have them here. That would suggest that we do not have confidence in the way that the Assembly is to operate and oversee its functions. I give way to the noble Lord.

Lord Lester of Herne Hill

I am grateful to the Minister. I promise to try to abbreviate my later comments in these debates. However, this is a most important issue. The problem is not about whether we trust politicians. For example, under the International Covenant on Civil and Political Rights we are bound to ensure that there is equal protection of the laws throughout the whole country and that the basic core guarantee of equality without discrimination is observed in practice equally throughout the kingdom.

Therefore, I still do not understand whether what is being said is that the responsibility for the content of the statute book and for the content of the fair employment, sex discrimination, disability discrimination and race discrimination legislation will be a matter which will remain within the protection of the Secretary of State so as to secure one common minimum standard throughout the whole country, or whether the Government's position is that the Assembly may, if it so wishes, amend that legislation and dilute the minimum standard of protection. That is what I am seeking clarification upon. All these arguments about the equality commission and whether it should have the same status as the human rights commission are, in a sense, ancillary to that basic concern. We wish to ensure equal effective protection of the same standards of equality throughout the whole country. I am seeking to find out whether the Government share that desire and whether it can be achieved during the course of our debates.

Lord Dubs

The noble Lord is getting a little ahead of me. I was going to deal eventually with some of the points that he has just mentioned, but I was trying first to deal with some of the earlier points. I shall restate what I said earlier. The existence of the equality commission as an institution is a reserved matter but the bulk of its day-to-day activities will continue to be concerned with existing anti-discrimination legislation. Indeed, there is no intention of changing the responsibilities of any of the four organisations which will be merged into the new body. Those four organisations and their powers will not be changed by these processes. I do not quite know what further point the noble Lord is making. However, perhaps I may deal with that later.

My noble friend Lady Lockwood asked about keeping the prohibition of indirect discrimination. That is the subject of an amendment which will be considered later. However, for the moment, perhaps I may reassure my noble friend that the existing prohibition on indirect discrimination in respect of religion, sex and race and in matters of employment will be retained. So, too, will be prohibition on indirect discrimination in the provision of goods, facilities and services in respect of sex and race. Indeed, the Government will soon bring forward legislation to extend this to the field of religious and political discrimination. I hope that that gives some assurance to my noble friend. As I said, the question of indirect discrimination is the subject of another amendment with which we shall deal later. However, in all these respects, the equality commission will inherit the powers and duties of the current bodies under present legislation.

The noble Lord, Lord Rix, asked a specific question about disability. The Government published proposals in a recent White Paper for the creation of a disability rights commission in Great Britain. The noble Lord suggested that similar functions could be given to the equality commission in Northern Ireland. If a disability rights commission is established in Great Britain, we hope that the Northern Ireland Assembly will give similar powers to the equality commission and resource it appropriately. In the meantime, the equality commission will be no less well resourced than the existing Disability Council which it subsumes. The working group planning the new commission will meet to consider training needs of staff, including disability awareness training.

The noble Lord, Lord Molyneaux, asked about titles. I am not quite sure what is the significance of the changes that the noble Lord suggests, but the reason for the change of nomenclature is absolutely simple; namely, we wanted to bring the titles into line with those suggested for the human rights commission and during consultation there were a number of approving comments on that proposal.

The noble Lord, Lord Skelmersdale, asked about changes to the agreement. The position is clear. The agreement is what is to be implemented. That is what was agreed by the parties and approved by the people of Northern Ireland, and indeed by the people of the Republic. I have referred to my next point on a previous occasion. The agreement itself provides for various mechanisms of review, for example on page 9 at paragraph 36 and on page 26 at paragraphs 5 to 8. Perhaps changes will arise from such a careful, considered and inclusive process of review, but I do not think we should anticipate them now. The position is clear. The agreement is to be implemented in full. If the noble Lord cares to look at the review procedures in the Good Friday agreement, he will know to what I am referring. I repeat that the Government's position is clear. We have a Good Friday agreement which has been subscribed to by virtually all the political parties in the Assembly. We expect them and this Government to implement the agreement in respect of those items that are within their powers.

4.30 p.m.

Lord Skelmersdale

It is quite clear that some of the review procedures are entirely in the hands of the Assembly. Therefore, with cross-party participation and agreement, a review cannot only be carried out, but also substantive changes can be made. The question is, what changes?

Lord Dubs

I do not think it is appropriate at this stage to get drawn into hypothetical questions as to what may happen at some point in the future. However, I read from paragraph 8 on page 26 of the agreement which states, In addition, the two Governments and the parties in the Assembly will convene a conference 4 years after the agreement comes into effect, to review and report on its operation". We have a procedure there, although that is a long way ahead of us. The key point is to get the agreement implemented in all its respects. That is what this Government are committed to doing.

The noble Lord, Lord Cope, asked a number of questions. He asked about reserved matters. I mentioned my next point earlier. He said that reserved matters are matters which are not devolved yet, but which soon will be devolved. I agree that they are not devolved yet, but unlike excepted matters they can be devolved in the future, if the Assembly, with cross-community support, agrees and both Houses of Parliament approve. However, it is wrong to assume that reserved matters definitely will be devolved. That may be the case, but that will be for decision at the appropriate time.

The noble Lord also asked whether Clauses 58 and 60 are in the reserved or the excepted field. The answer is to be found in government Amendments Nos. 245A and 282A to Schedules 2 and 3, which we shall probably reach tomorrow. That will clarify the position. However, paragraph 17 of Schedule 2 is being re-written. Therefore, if he hangs his argument on that, I fear that we may take the ground from under his feet.

I believe I have dealt with all the main points that have been raised. I believe that merging the four bodies into one is a positive step. Their functions will be taken over by the new commission. In addition, the equality commission will have the important functions which are now in clause 60 of the agreement. There will be a new statutory duty on public authorities. It is surely better to have one body to give effect to that statutory duty; otherwise, we would have difficulty in giving effect to that new duty, which has been widely acknowledged to be an important one.

Baroness Lockwood

I am grateful to my noble friend the Minister for clarifying the responsibilities and the powers of the four existing agencies. However, when one is dealing with issues of discrimination—the Northern Ireland Equal Opportunities Commission, by a 1976 Order in Council, has the same responsibilities and functions as the British Equal Opportunities Commission—it is often important that you can quote the Act to the people you are suggesting may be infringing it. In dealing with sex inequality and other inequalities, will it be possible for people to invoke the 1975 Sex Discrimination Act, or will they have to invoke this Northern Ireland Bill, or Northern Ireland Act as it will become?

Lord Dubs

The four bodies which will form the new equality commission will retain their existing powers. Therefore the statutory basis for their powers will be unchanged, except in respect of the new responsibility of the equality commission as regards public bodies. Therefore it is perfectly proper for the new body to base its work on the statutory support which comes from the legislation which formed the existing four bodies. Therefore the answer, in short, is yes.

Lord Lester of Herne Hill

I apologise for having to return yet again to this matter, but it is so important and there is something I still do not understand. The Minister said that the position will remain unchanged. In the Good Friday agreement the promise that we are given under rights, safeguards and equality of opportunity is that the parties affirm—that is to say, both Governments for both countries affirm— the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity". Then we are told there is to be United Kingdom legislation—which is this Bill—and legislation in the Republic of Ireland. I am afraid I still do not understand whether the Assembly will have the power to dilute the underlying code of equality law so that—to take the example given by the noble Baroness, Lady Lockwood—it will be able to amend, subject to Community law (which is a safeguard only in respect of employment and social security) the sex discrimination order so as to weaken that, or it will be able to amend the race relations order so as to weaken that, or the disability discrimination order. Will the Assembly have the power to weaken the equality code as part of the scheme which we have in front of us? I can understand the arguments about machinery, funding and the commission, but it is that core question I have mentioned which concerns us.

Lord Hylton

I think I may be able to help the noble Lord, Lord Lester. The Assembly will not be able to weaken the provision because it is a reserved matter. I may also be able to help the noble Baroness, Lady Lockwood. She will have to look up the Act to see whether it extends to Northern Ireland. If it does, it can be quoted, but if it does not, she and her friends must rely on the relevant order.

Lord Molyneaux of Killead

I am not certain that we are being terribly helpful to the Minister, although we are not trying to make life difficult for him. I come back to the central question which has been asked but not, if I may say so, satisfactorily answered, or at least not clearly answered to my rather dim understanding. What is the advantage of providing for the possible transfer of authority and power to the Northern Ireland Assembly? Is there any good reason for assuming that at the present time or at any stage in the future the Assembly would want to be given such power? Would it not much prefer to remain governed in all of these matters by the Parliament and Government of the United Kingdom?

The Minister mentioned the proposed disability council for Great Britain. Will it automatically extend to Scotland and Wales when they have their devolved administrations?

Lord Dubs

I shall have to look into the last point because I am not qualified to speak about devolution matters in Scotland and Wales, at least not without notice.

Lord Lester of Herne Hill

As I understand it, the Scottish parliament will not have the power to deal with the equality code because that is not to be devolved to Scotland; nor, for that matter, is employment law generally.

Lord Dubs

As to the main question asked a few moments ago by the noble Lord, Lord Lester, Clause 20 gives the Secretary of State power to enforce international obligations on the Assembly. That is the reply to the first part of the question.

The second part of the question concerned the codes. The Assembly would have the power to amend or revise the codes if it thought fit. However, international obligations would come under the Secretary of State or the Secretary of State would be able to enforce such obligations on the Assembly. The basic principle remains clear. The existing body of equality law is transferred and the Belfast agreement clearly requires those matters to be devolved.

The noble Lord, Lord Molyneaux, asked what happens if the Assembly does not want to take on any powers which are now reserved but which might eventually be transferred. I suggest that that should be a matter for future discussions and consultation. It is not for me to say at the moment what would be the position at some future date.

Lord Holme of Cheltenham

Can the Minister explain why the Government are prepared to say in the case of Scotland that the devolved government of Scotland cannot vary equality obligations, whereas in Northern Ireland they potentially can?

Lord Dubs

It is the codes that come under the legislation that could be revised, not the legislation.

Lord Lester of Herne Hill

If that is right, then it is not the answer as I understood it to be. When I used the word "code", I was referring to the legislation. That is why I referred to the sex discrimination order, the race relations order and the others. When I say "code", I mean the legislation, primary and subordinate: the fair employment legislation (primary), the sex and race discrimination and disability (subordinate). Can the Assembly amend those? As I understood the Minister, he said: "Yes, it can", subject to the need to comply with the international covenant on civil and political rights with the political overrides. That is how I understood him and that is how the question put by my noble friend Lord Holme arises, asking why Scotland would not have the power but Northern Ireland would, in potential breach of our international treaty obligations.

Lord Dubs

I am sorry if I have inadvertently misled the noble Lord and other Members of the Committee. The Belfast agreement states that those matters are to be devolved. If I said "codes", the noble Lord is right. The whole basis for the equality commission's work will be a devolved matter. I suggest the possible reason that the appropriate procedure is different in Northern Ireland from that in Scotland is that the original basis for the legislation in Northern Ireland is different in that it goes back to the old Stormont regime. We began in a different place and hence we have a different process. However, in any case we are sticking by the agreement. If the Good Friday agreement indicates that as the way forward, then it is the way we go, even if there are differences from the approach in Scotland.

Lord Cope of Berkeley

I apologise for coming back to this, but the Minister keeps stressing the agreement and I go along with it. But, after all, the agreement states that: The new …; Human Rights Commission …; will be invited to consult …; [about] defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights". So on human rights, Westminster legislation will supplement the international obligations but on equality that is evidently not to be so.

Lord Dubs

That is the case. I commend the amendment.

On Question, amendment agreed to.

4.45 p.m.

Lord Dubs moved Amendments Nos. 151 B to 151 D:

Page 28, line 11, leave out ("member as chairman") and insert ("Commissioner as Chief Commissioner").

Page 28, line 12, leave out ("member as deputy chairman") and insert ("Commissioner as Deputy Chief Commissioner").

Page 28, line 14, leave out ("Commission's members") and insert ("Commissioners").

On Question, amendments agreed to.

Clause 58, as amended, agreed to.

Clause 59 [The Commission's principal functions]:

[Amendment No. 152 not moved.]

Clause 59 agreed to.

Lord Morris of Manchester moved Amendment No. 153:

After Clause 59, insert the following new clause—