HL Deb 26 October 1998 vol 593 cc1715-34

(".—(1) There shall be a body corporate to be known as the Disability Rights Commission for Northern Ireland (referred to in this section as the Commission).

(2) The functions exercisable by the Northern Ireland Disability Council shall instead be exercisable by the Commission; and that Council is hereby dissolved.

(3) The Secretary of State may by order made by statutory instrument make—

  1. (a) further provision about the Commission's membership, staff, funding, functions, procedure and status; and
  2. (b) such supplemental, incidental or consequential provision as appears to him to be appropriate as a result of subsection (2).

(4) An order under subsection (3) shall not be made unless it has been laid in draft before, and approved by resolution of, both Houses of Parliament.").

The noble Lord said: I beg to move Amendment No. 153, and will not detain the House more than momentarily. I addressed this amendment and all my others to the Bill in a speech in Committee on 19th October which is reported at cols. 1236 to 1238 of the Official Report.

Since then I have heard nothing that persuades me to revise the review I expressed in our earlier debate. Nor is Disability Action, representing as it does 180 member groups that cover every aspect of disability in Northern Ireland, any less concerned than it was when I gave the Committee its view on 19th October.

My good friend, the noble Lord, Lord Rix, who is also a signatory to Amendment No. 153, has raised important questions today which deserve further consideration by the Government. I hope very much that the Minister will now be able to reassure him and Disability Action about its deeply felt concerns in relation to this part of the Bill. Refreshingly, our new Government are strongly committed to fashioning their policies on disability in close consultation with disabled people. This is an extremely important issue for them to do so.

Lord Rix

I spoke to Amendment No. 153 a week ago, on the first day of the Committee stage and, indirectly, prior to the amendment being moved just now by the noble Lord, Lord Morris of Manchester. The Minister is fully aware of my questions and the need for reassurances. I believe that they are now recorded in Hansard. No doubt they will be fully considered and answered in the shortness of time, rather than the fullness of time.

Lord Renton

I hope that I may be forgiven for being a little puzzled as to exactly what we are doing at the moment. I assumed that Amendment No. 152 was a necessary paving amendment to Amendment No. 153. If I am wrong, I hope that I shall be corrected, in order to save time.

Lord Morris of Manchester

I tabled eight amendments to the Bill and they were intended to be considered as a whole. That was why I addressed them together on 19th October. Amendment No. 153 provides an opportunity to stress again today the importance of a sympathetic response to the concerns put to me by Disability Action and other organisations of and for disabled people in Northern Ireland. I moved the amendment briefly. It was not my intention to excite lengthy debate, but to give my noble friend a further opportunity to reply as positively as he can.

Lord Renton

I am very grateful for that explanation. Perhaps I may now briefly express my views upon this matter which are in agreement with those of the noble Lord. I believe that to disband the various bodies mentioned in Clause 59(2) and group all of their responsibilities together under one body to be known as the equality commission is to take a risk. Disability is a very large and delicate subject that needs attention in Northern Ireland. Both I and the noble Lord, Lord Rix, are aware that there is very strong MENCAP representation and other forms of disability in Northern Ireland.

The noble Lord is right to express the view that there should be a separate body to consider matters relating to disability and that is why in principle I support his amendment. I should like to know whether the Government have a satisfactory answer. To link disability with the various other matters to be considered by the equality commission, including fair employment, equal opportunities—that subject goes right across the board—and the Commission for Racial Equality for Northern Ireland, is to take the risk of subordinating disability to these other problems. I hope that they can be considered by a separate body as the noble Lord suggests.

Lord Dubs

I pay tribute to the distinguished record of dedication by the noble Lord, Lord Morris, to the cause of equality for people with disabilities and his contribution both as a legislator and a Minister. Many years ago before I was elected to the other place I recall speaking almost with awe of the contribution my noble friend had made to changing the law on behalf of disabled people. I also know well the long and distinguished record in this field of the noble Lord, Lord Rix. He has been very diligent in attempting to further the cause of people with disabilities. Like both noble Lords, the Government are anxious that disability issues should not be sidelined within the new equality commission. We believe most emphatically that that will not be the case.

The fact that the chair of the Northern Ireland Disability Council is on a new working group to plan the structures of the equality commission will help to ensure that disability issues receive proper attention in the work of the new commission. It is the view of the Government that the proposed equality commission for Northern Ireland is the appropriate body to exercise the functions that are currently exercised by the Northern Ireland Disability Council. Every noble Lord who has spoken has expressed concern that the particular organisation or body of the four to be merged is the one that will suffer in the process. I do not believe that that will be the case. I believe that the new body will be more effective than the component parts.

I turn to the specific issue of disability. If, following initial consultation on the White Paper promoting disabled people's rights, enhanced functions are given to a new disability rights commission in Britain we believe, as was said in an earlier debate, that the equality commission will be the appropriate body to undertake those enhanced functions in Northern Ireland. As is now understood, I believe that following devolution this will be a matter for legislation by the Assembly. In the circumstances, and with the assurances that I have been able to give, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Desai

Before my noble friend decides whether to withdraw the amendment I should like to make a short interjection. I intended to speak on the clause stand part. We have heard that, basically, whatever structure is set up, the disquiet of the various bodies in Northern Ireland should be addressed very thoroughly and sympathetically. When the working group meets it should take on board the disquiet of the various constituent bodies. People are genuinely worried. Whatever consultations for or against have taken place is not the point. The point is that there is disquiet about the separate identity of these bodies and funding. I hope that my noble friend can give an assurance that that will be addressed. I suggest—he may not agree with me—that one obvious answer is to include among the commissioners some of the people who already deal with this matter now.

Lord Molyneaux of Killead

Is it possible for the working party to be made aware of the fact that presumably, as it turns out, only England will have a disability council? Can one try to persuade the working group and the Northern Ireland Assembly not to legislate in advance of the establishment of the disability council now that one knows that it is for England and not Great Britain?

Lord Dubs

As to the last point, I am reluctant to advise the Assembly about anything. We must be very careful not to seek to tell the new Assembly what to do. But no doubt the Assembly will pick up the drift of what the noble Lord said.

In reply to the point raised by my noble friend Lord Desai, I shall ensure that the full account of the debate today and on earlier occasions on disability is made known to every member of the working group so that they are fully up to date as to the concerns expressed today and on other occasions.

Lord Morris of Manchester

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Statutory duty on public authorities]:

Lord Archer of Sandwell moved Amendment No. 154:

Page 29, line 11, at end insert—

("() The duties imposed by this section shall be without prejudice to any law, programme or activity which has as its object the amelioration of conditions for individuals or groups disadvantaged in terms of gender, race, disability, age, marital status, dependants, sexual orientation, religious belief or political opinion.").

The noble and learned Lord said: I beg to move Amendment No. 154. It may be for the convenience of the Committee to debate also Amendment No. 162. These amendments are about substantially the same point; that is, what is often called affirmative action. I say at once that they are not about reverse discrimination. The distinction is an important one. Old Northern Ireland hands will remember the debates on this subject in the early 1980s. The purpose of the amendments is to ensure that the clause shall not render unlawful any action that is taken to promote the very objectives of the clause itself; namely, that it shall not be self-defeating.

I offer an example. It may be that this matter has already been canvassed in the course of earlier debates today. I apologise that I was unable to be present for the first debate. If, in a room to which the public has access—perhaps a waiting room for people administering some service waiting their turn for interview—the space will not permit the provision of seats for everyone and the authority provides seats specifically for people with disabilities it may risk falling foul of subsection (1). Someone who is not disabled may say that the authority has provided a seat for a disabled person but not for him. These amendments would meet that objection. This is not about quotas. To refuse a job to a person who would otherwise have been offered it in order to redress a balance is not within the expression "amelioration of a condition"—at least that is my view. To bring an advertisement to apply for a job to the notice of a group of people who may not otherwise have been aware of it may well fall within that expression. I believe that the distinction is clear and it will not be improved by repetition on my part. No doubt the Committee anxiously awaits the reaction of my noble friend.

5 p.m.

Lord Cope of Berkeley

I am in sympathy with the purposes underlying the amendment described by the noble and learned Lord, Lord Archer, and of Amendment No. 162. I do not think that anyone could be out of sympathy, in particular with the example he gave of a seat in a waiting room. However, are all the categories listed in the two amendments within the responsibilities of the four bodies about which we speak? Some seem less likely to be so. I do not have the relevant legislation to hand. Perhaps the Minister can tell us whether, for example, age, marital status and sexual orientation are included in the legislation.

Lord Archer of Sandwell

I am grateful to the noble Lord. He will find those categories in Clause 60(2). I sought at least to follow the wording that was already there.

Lord Lester of Herne Hill

We, too, have full sympathy with the objective of the amendment; namely, to permit affirmative action. I am hesitant about what I am about to say because I believe that much of the inspiration for the amendment comes from Professor Christopher McCrudden, than whom there is no greater authority in the country on anti-discrimination legislation. I believe that it is based on the affirmative action clause in the Canadian charter of rights and freedoms.

Something has gone wrong with the grouping of amendments. Amendment No. 154 gives one approach; and Amendment No. 164, standing in the name of myself and my noble friends Lady Turner of Camden and Lord Rix, gives a slightly different approach. I wish to explain my reservations on Amendment No. 154 as it stands. There have to be some limits to affirmative action, otherwise the exception will swallow the principle of equal treatment without discrimination. The limit normally placed upon affirmative actions is a notion of proportionality: that affirmative action must be necessary, reasonably proportionate, or something of that kind. That limitation is in the Canadian charter of rights but not in Amendment No. 154. Amendment No. 154 simply refers to affirmative action as being the object of the exception rather than being reasonably necessary or proportionate. Amendment No. 164 is our attempt to permit affirmative action provided that the measures are, designed and reasonably necessary to protect or advance individuals or groups of persons disadvantaged", and so on. We fully share the objective of Amendment No. 154 but are simply concerned about the safeguards against abuse.

I pray in aid the South African constitution. When framing its 1996 constitution, there was great concern in South Africa that an open-ended affirmative action provision would be abused. That is why the words "designed to" were put into the South African constitution. They mean "intended to and having that effect". Therefore, with those reservations we support the aim of the amendment and hope that the Government will be able to do so. However, we suggest that there needs to be some limiting language to prevent abuse of this exception.

Lord Molyneaux of Killead

In the unavoidable absence of the noble and learned Lord, Lord Archer, we discussed the parallel amendment.

Lord Archer of Sandwell

I am grateful to the noble Lord for allowing me to intervene. I am not absent.

Lord Molyneaux of Killead

It was at an earlier stage. I then expressed general agreement with the thrust of both amendments. However, perhaps we should provide some mechanism for adding to the list further groups which come to our notice rather than to have to produce legislation.

Lord Dubs

Perhaps I may first clarify the question asked by the noble Lord, Lord Cope, about the different groups covered. Clause 60(1)(a) and (d) indicates groups additional to religion, political opinion, race and gender. The noble Lord will note that the other four are covered there also.

Perhaps I may say this to the noble Lord, Lord Molyneaux. We have a number of groups here. The possibility of adding others to them does not immediately appeal. Unless there is good argument—at present we are dealing with the specific proposals in the Bill—I would not wish to be tempted to go into further categories.

Perhaps I may deal with the substance of debate on the two amendments. Amendment No. 154, in the name of my noble and learned friend Lord Archer and my noble friend Lord Morris, proposes an exemption from the statutory duties under Clause 60 for affirmative action measures. We do not believe that this is necessary. The statutory obligation requires that a public authority should have due regard to the need to promote equality of opportunity. Promotion of equality of opportunity is not therefore an overriding consideration but must be set alongside other considerations such as the need to reduce disadvantage. The obligation relates to equality of opportunity, not equal treatment, so it is hard to see an incompatibility between it and addressing disadvantage among women, travellers or people with disabilities. The amendment also poses certain difficulties of interpretation as we would have to see to what extent an individual was disadvantaged because of his or her membership of a social group, or disadvantaged merely for normal economic reasons.

The Government are fully committed to tackling disadvantage wherever it is found through major policies such as targeting social need, recently relaunched. The statutory obligation under Clause 60 will not constrain or hamper such initiatives.

Amendment No. 162 is a similar exception for affirmative action in relation to Clause 61. I do not wish to pre-empt later discussion of that clause. Amendment No. 162 is closely bound up with Amendments Nos. 160 and 161, but extends the scope of Clause 61 to cover indirect discrimination and will also extend its scope of action beyond religion and political opinion. We shall explain subsequently why we think that Clause 61 should remain restricted to religion and political opinion. The Government do not envisage circumstances in which public authorities should be able to discriminate directly on the ground of religious belief or political opinion even if their intentions are honourable. Such an amendment would, however, be necessary if we were proposing to extend Clause 61 to cover indirect discrimination.

An exemption for affirmative action measures would become necessary in relation to indirectly discriminatory effects. Again the relationship between that amendment and indirect discrimination will be dealt with shortly. As we do not propose to extend Clause 61 in that way, there is no need to include an exemption for indirect discrimination motivated by a desire to redress disparities between the two communities.

I hope that in the circumstance the noble and learned Lord will feel able to withdraw the amendment.

Lord Cope of Berkeley

I apologise for coming back to the Minister. My question was not whether the other groups fell within Clause 60. I realise that they do. The noble and learned Lord, Lord Archer, explained that he had taken the wording from Clause 60. My question was whether those groups were covered by the equality commission's functions defined in Clause 59 by reference to the functions of the existing four bodies. I am not sure whether all those functions are covered by existing bodies, and hence by the new equality commission.

Lord Dubs

My understanding is that the functions of the bodies in Clause 59 do not cover all the groups covered by Clause 60. However, the new, additional responsibility of the equality commission is to oversee the new statutory duty on public authorities. That new statutory duty covers all the groups listed in Clause 60.

Lord Cope of Berkeley

I am grateful to the Minister for setting that out. I understand that as regards sexual orientation the new equality commission will have responsibility for ensuring that there is no discrimination within public authorities, but will have no authority in that regard relating to private bodies or individuals.

Lord Dubs

Yes, that is my understanding. The legislative basis for the four component bodies does not include sexual orientation.

Lord Monson

Will the Minister clarify the ban on discrimination on grounds of political opinion? Does it cover the expression of every political opinion, however extreme or bizarre? Let us suppose that during the course of an interview a job applicant mentioned that in his opinion not nearly enough people had been killed in Omagh. Would someone be running foul of the law if they declined to put that individual on the short list?

Lord Dubs

I am reluctant to discuss such a hypothetical example. I would have thought that such an opinion would sit uneasily with the functions of almost any job. My understanding is that political opinion means adherence to a political party. I need to take further advice because I am not too confident about my answer. If I am wrong I shall write to the noble Lord.

Lord Archer of Sandwell

I am grateful to all Members of the Committee who have participated in the debate. I say to the noble Lord, Lord Cope, that Clauses 60 and 61 impose duties on public authorities and are not directly concerned with the equality commission. The duties imposed on public authorities embrace a whole spectrum of those rights. Exactly what will be the interface in practice between the public authorities and the equality commission is a matter on which my noble friend is much better qualified to pronounce. I hope that the noble Lord is clear about why I included the list within the amendment.

I am sorry that the noble Lord, Lord Lester, and I did not have an opportunity to discuss the amendments. We both had other commitments and events overtook us. I readily confirm what I should have said at the outset; that I am grateful to Professor McCrudden for this amendment and many others. I attempted to pay that debt of honour in our debates last week. He could speak for himself if he were a Member of your Lordships' House, but I must try to speak for him. I accept the point made by the noble Lord, Lord Lester, that there ought to be some concept in our ultimate text about proportionality or necessity. Certainly, I would not go to the stake for my amendment as opposed to his. There may be opportunities for us to discuss the matter further before the Report stage.

As regards the point made by the noble Lord, Lord Molyneaux, I shall be the last to seek to deny power to anyone to add to the list of rights which we are seeking to protect. However, I understand his point that we may not wish to rush into everything at one leap.

I turn to my noble friend's reply. It is not the first time in the long years I have been in this Palace that I have heard a member of the Government say, "We wholly agree with the purpose of these amendments, but they are not necessary". I can say only that I remember the early 1980s when in a similar situation we had long debates on whether such words were necessary. At that time, when someone took affirmative action, people said, "Look, you are doing something for him which you are not doing for me". They said that majorities had rights as well as minorities, and of course they have. If we fail to clarify the matter now there will come a time when we bitterly regret it. It will not be the first time a Government have had to say, "It is a pity we did not get it right at the outset".

I do not believe that we can take the matter much further in the course of this debate. I hope that between now and Report it will be possible to discuss it again.

Lord Dubs

Perhaps I might be permitted to clarify a point made by the noble Lord, Lord Monson. "Political opinion" has been interpreted by the courts in Northern Ireland to mean "legitimate political opinion"; that is to say, non-violent political opinion. That is a court interpretation which I did not have to hand earlier.

Perhaps I might comment on the points made by the noble Lord, Lord Cope, and my noble and learned friend Lord Archer, concerning the duties imposed on public authorities under Clause 60. The equality commission monitors and approves quality schemes put forward by public bodies to give effect to their duties under Clause 60, but it also has a role in hearing and determining complaints against a public body on these matters.

Lord Archer of Sandwell

I am grateful to my noble friend for that clarification, as I am sure is the noble Lord, Lord Cope. I will study carefully what my noble friend said, as I always do. I hope that in return he will look closely at the example which I gave and, perhaps with his advisers, consider whether it might give rise to future problems. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Archer of Sandwell moved Amendment No. 155:

Page 29, line 11, at end insert— ("() Each public authority shall—

  1. (a) make appropriate arrangements for ensuring that its functions and responsibilities are carried out with due regard to the duties imposed by this section; and
  2. (b) submit an annual report to the Equality Commission for Northern Ireland setting out the measures and policies adopted to comply with the duties imposed by this section.").

The noble and learned Lord said: It may be for the convenience of the Committee to discuss with Amendment No. 155 Nos. 157, 308A, 309, 309A, 310 and 310A to 310H. I shall speak only to Amendment No. 155.

The purpose of Clause 60 is to impose on public authorities a duty to implement so far as they can the equality provisions. That was the intention of the agreement and this is the attempt by those who introduced the Bill to implement the agreement. No doubt most if not all the public authorities intend that that shall happen. But good intentions disperse into the mist unless there is in place a regime which directs people's minds to them in the course of daily administration, particularly of daily decision making.

A concern for human rights is not a separate step at the end of a decision-making process. It has to be a constituent part of every stage in the process. No one would suggest that in learning to drive we introduce safety as a distinct operation; for example, lessons one to nine on how to drive and lesson 10 on how to drive safely. It is an integral part of each stage of the process. Equally, a concern for human rights is part of the chemistry, not a device which we add to the machine at the end. That is the purpose of paragraph (a).

Paragraph (b) provides that, in addition, an authority shall pause sometimes and look backwards to examine what it has achieved and what it has failed to achieve. It simply provides for an annual stocktaking. It was urged on me to add a third paragraph; a duty at intervals of more than one year to review whether the aims with which the authority began the journey were sufficient. I refer to those which will be implemented under subsection (1). Aims, aspirations and visions may well expand as time goes on and perhaps they should be reviewed, too. But that paragraph is not in my amendment and therefore I cannot invite your Lordships to discuss it today. I await my noble friend's reply to the proposals I have set down, and I beg to move.

Lord Lester of Herne Hill

We support Amendment No. 155 because it makes public authorities consider how they will comply with the duty and requires them to submit an annual report to the new equality commission explaining what they have done. It would make public authorities establish effective internal mechanisms for the enforcement of the equality of opportunity duty. Therefore, for the reasons given by the noble and learned Lord, Lord Archer of Sandwell, we support Amendment No. 155.

I shall speak now to Amendments Nos. 156 and 157 which have been grouped awkwardly with this amendment because they deal with a wholly separate subject. The purposes of Amendments Nos. 156 and 157 are to incorporate the definition of "public authority" in the Human Rights Bill into the Northern Ireland Bill instead of having the list system listing public authorities.

The Government have been astute in sticking to the definition of "victim" in the Human Rights Bill and to read it across into Clause 56(1) of the Northern Ireland Bill so as to have that narrow, crabbed definition of "victim" which applies right across the board, and there is nothing we can do about it. But for reasons I do not understand, the Government are unwilling to be similarly consistent when it comes to the public authority which is placed under a duty to promote equality of opportunity under Clause 60 and not to discriminate on religious grounds under Clause 61.

I have paid frequent tribute to the creative, poetic and imaginative drafting of the Human Rights Bill and that Bill defines "public authority" very sensibly in a broad, inclusive way. It states: In this section, 'public authority' includes …; any person certain of whose functions are functions of a public nature". We believe that that broad definition should apply to the statutory duty under Clause 60 of the Northern Ireland Bill and the duty not to discriminate. In other words, any person, certain of whose functions are functions of a public nature in Northern Ireland should have a duty to promote equality of opportunity and not to discriminate on religious grounds.

Instead, Clause 60 paragraph 3 provides that "public authority" means: The First Minister and the deputy First Minister …; a Northern Ireland Minister …; a Northern Ireland department …; any body listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation) …; any other person designated for the purposes of this section by order made by the Secretary of State". Therefore, the matter is to be dealt with by subordinate legislation by order rather than the broad, workable, inclusive test for the purpose of the Human Rights Bill.

We find that quite bizarre. A person endowed with public functions and responsibilities plainly should have the twin duties in Clauses 60 and 61. Under the Human Rights Bill, the broadly defined public authorities will in any event have a duty not to discriminate under Article 14 of the European human rights convention read with other convention rights. Therefore, there will be the broad definition of "public authority" in the Human Rights Bill but there is to be a different definition of "public authority" for the purposes of Clauses 60 and 61.

We can see absolutely no good reason for having that list system. I believe that it comes from the Government's White Paper on freedom of information where they had the idea of using a prescribed list system. That is not integrated into the fabric of the Human Rights Bill, as is this legislation.

Therefore, we very much hope that we can achieve a workable general definition of "public authority" which will not catch anybody in the private sector. It is made clear in the Human Rights Bill that it does not catch people who are performing functions of a private nature. However, the Bill will deal with people who are within the public sector within that broad definition. Therefore, I have tabled Amendments Nos. 156 and 157 to make it workable and user-friendly.

Perhaps I may add to the plea made by the noble Baroness, Lady Lockwood. Surely we wish to have legislation which is intelligible to ordinary men and women so that the whole of the law within the Bill can be understood, with schedules which set out the equality legislation and a definition of "public authority" which is consistent whether one is dealing with discrimination under the Human Rights Bill or under the Northern Ireland Bill. We need to have an internal coherence and consistency; otherwise, people like me will earn a lot of money pointlessly advising on this gobbledegook style of legislation where Bills are not on good speaking terms one with the other. That is why we seek to include one common, simple intelligible definition of what is meant by a "public authority".

Lord Rix

I rise to support the noble Lord, Lord Lester of Herne Hill. As I understand it, the Human Rights Bill will be fully workable within the next 18 months; that is, according to the leader in The Times this morning. That being so, because the general definition of which body carries out functions of a public nature is stated clearly in what will become the Human Rights Act, surely it would be much simpler and more sensible for the Government to adopt that terminology now rather than having to adopt it in 18 months' time.

Baroness Lockwood

I support Amendments Nos. 155 to 157. Amendment No. 155 in the name of my noble and learned friend Lord Archer of Sandwell seems to me to be very practical. The equality agencies which exist at present advise organisations of any kind, including public authorities, to make appropriate arrangements for ensuring that their responsibilities under existing legislation are carried out.

It is often a safeguard to those organisations if they are subsequently accused of discriminating, if they can prove quite clearly that they have appropriate arrangements. If they have not discriminated, it is often easier to establish that fact.

It is appropriate for public authorities to know on the face of the Bill that they are expected not just to observe the general principle but in practice to make certain that they have in place appropriate procedures and programmes to meet their obligations under the Act and then to submit a report to the equality commission. Therefore, I support that amendment.

The two amendments spoken to by the noble Lord, Lord Lester of Herne Hill, seem to me very logical. Clarity and consistency in our legislation helps those of us who are trying to ensure that such legislation is adhered to.

Lord Skelmersdale

I agree that we should have clarity but not necessarily consistency. After all, as has been pointed out not once but twice in this short debate, the human rights legislation will not come on to the statute book for a little while and will not be operative for some time afterwards. Therefore, the phrase which has been praised today that a public body is one which carries out acts of a public nature has not yet been tested in the courts. Until it has, I suspect that we should be rather previous to include it in this legislation.

The definition of "public authority" seems to me to be quite clear, with the possible exception of paragraph (e) which refers to: >"any other person designated for the purposes of this section by order made by the Secretary of State". I have no doubt that sooner or later we shall be given an inkling of the Secretary of State's thinking in this regard. Nonetheless, I would have thought that this comprehensive list was a happier position than a phrase which, as I say, has not yet achieved respectability, as I understand it, in British law.

5.30 p.m.

Lord Meston

I hesitate to interrupt a debate in which I have not participated. Since the passage of the Human Rights Bill I have spent a lot of time studying the question of what is or is not a public authority within the context of that Bill. As my noble friend, Lord Lester, said, it is clear that the Bill provides a partial but nevertheless comprehensive definition and it would be a great misfortune if there were inconsistency in the approach that the courts had to take to the definition of what is or is not a public authority.

In the Human Rights Bill it is clear that there are certain bodies which are undoubtedly public authorities. Certain other bodies are more hybrid and they will be treated as public authorities in respect of their public functions, but not otherwise. Inevitably, this will generate a body of case law to deal with the grey areas.

At one stage in the passage of the human rights legislation through your Lordships' House I recall the noble Lord, Lord Williams of Mostyn, saying, in terms, that there would be certain areas in which the courts would have to develop the law to decide whether or not certain bodies or certain functions were to be regarded as public. I suggest that it cannot be right that there should be uncertainty elsewhere as to what is or is not a public authority, particularly if a narrower definition were to apply in the context of Northern Ireland.

The matter cannot simply be left to the courts to develop. With respect to the suggestion that the matter can be shelved because the Human Rights Bill will not come into full operation possibly until the end of the century, I would simply point out that the whole thrust of the debate on the Human Rights Bill has been to the effect that all authorities should now be educating themselves as to their duties under the human rights legislation. Moreover, it seems to me that Clause 22(4) of the Human Rights Bill applies at least part of the obligations retrospectively under what will become the Human Rights Act. I do not think it is sufficient to say that the matter can be left in abeyance until the Human Rights Bill becomes fully operational.

Lord Skelmersdale

I do not know whether the noble Lord, Lord Meston, was referring to what I have just said when he talked about leaving it in abeyance, but that was certainly not the point I was trying to make. I was trying to say that until these grey areas, which the noble Lord admitted would be bound to exist, had been comprehensively dealt with by case law, we could be in a difficulty as far as this Northern Ireland legislation is concerned. I do not believe that that is desirable.

Lord Lester of Herne Hill

Before the noble Lord sits down, would he accept that bodies like Railtrack and British Gas would plainly be public authorities on the definition in the Human Rights Bill but that they would be covered by Clauses 60 and 61 only if they were designated by the Minister? That is the kind of mischief we seek to tackle in these amendments: that there will be public authorities in the ordinary meaning of the term "public authorities" that would be outside Clauses 60 and 61, yet inside the Human Rights Bill.

Lord Skelmersdale

I am sure that the noble Lord is absolutely right, and that is why it is important to know what is in the Secretary of State's mind. That is a point I made when I first spoke.

Lord Cope of Berkeley

The more I listen to the discussion about the grey areas, the more I am inclined to favour what has been called the "closed list" system, at least for this purpose. For example, Railtrack sells indirectly to the public a particular service while the train operating companies sell the service directly to the public, but Railtrack does not seem to me to be in a different position from a shop that sells other forms of goods, or other people who provide services to the public, including lawyers, providing the public can pay. The noble Lord, Lord Lester, rightly and admirably, was trying to cut down the amount paid by the public to lawyers earlier, which obviously is to be commended.

The phrase "functions of a public nature" seems to open itself up to a good deal more argument which I do not think is desirable in the Northern Ireland context at this stage. In future, when case law has had time to be settled, it may be right to put the definition contained in the Human Rights Act 1998, as stated in this amendment, into this legislation. For the time being I favour the "closed list" system.

On the lead amendment about public authorities arrangements, the noble and learned Lord, Lord Archer, touched on an interesting suggestion for making those bodies which are defined as public authorities answerable to the equality commission. We have to test it in our minds, as it were, against the proposals of the Government which are about to be amended substantially. There are a lot of amendments in this group which amend them.

I am inclined towards the Government's view of the "scheme" proposal, as opposed to the "annual report" proposal. They do not necessarily rule out one another. They could proceed in tandem. To have both of them at once may be overdoing it. My preference at this point, subject to further debate, is for the "scheme" system rather than the "annual report" system, if I can express it that way.

Lord Simon of Glaisdale

Perhaps I may speak to Amendments Nos. 156 and 157 proposed by the noble Lord, Lord Lester of Herne Hill. There may be several advantages in them. The first is an important one. The amendments considerably shorten the provision and that is no mean consideration when we are gradually adding to the volume of the Bill as we go through it.

The second point is that made by the noble Lord, Lord Lester, and the noble Lord, Lord Meston. It can only cause trouble if we have two different definitions in relation to what is substantially the same subject matter. The definition in the Human Rights Bill is likely to be the one that passes into law. Many of us wanted to extend it, but my noble and learned friend the Lord Chancellor and the noble Lord, Lord Williams of Mostyn, would not have it and so we must be content with it as it stands. It is not a dangerously wide definition from the point of view of those who fear that human rights are going too far. As I say, it does not go as far as many of us would wish it to.

If we have two different criteria, as the two noble Lords on the Liberal Democrat Benches said, it can lead only to argument in court comparing one code with the other. That is a second advantage that speaks strongly in favour of the amendment. I hope that the Minister will at any rate agree to consider the matter further.

Lord Dubs

These amendments all deal with the obligations on public authorities in carrying out their functions to have due regard to the need to promote equality of opportunity. I am happy to inform the Committee that today's government amendments include one which addresses the point raised by several commentators in recent months; that is, the need for a direct requirement on public authorities to prepare schemes.

The March 1998 White Paper—Partnership for Equality—first proposed such an obligation which should supersede the existing guidelines. The White Paper proposal was radical. It proposed the implementation of the new statutory obligation for equality schemes which would detail procedural steps to be taken by each public authority in carrying out its functions. Those ideas of a statutory obligation and equality schemes were taken up in the Good Friday agreement.

Consultation on those proposals indicated widespread acceptance of them in principle. But inevitably there has been considerable debate in relation to the principle. During the summer my colleague, the Minister responsible for political development, held discussions with various interests on those details. Reflecting a point made in the other place, we decided that, in the first instance, public authorities should be required to produce equality schemes without prompting by the commission. Government Amendments Nos. 308A, 309A and 310B are the appropriate amendments. Public authorities will be required to produce schemes within six months of the commencement of Schedule 10. Special arrangements are included for public authorities which come into existence in the future and for cases where the commission believes a revised scheme to be necessary; for instance, if the public authority's functions change significantly.

Those amendments essentially meet the purposes of Amendment No. 310. We do not agree with his proposal in Amendment No. 309 that the commission should be able to revise a scheme. That should be for the public authority, if necessary, after a request from the commission. I therefore invite my noble friend not to move those amendments.

Government Amendment No. 310A extends the detail on the content of equality schemes in paragraph 2 (2) of Schedule 10 to include arrangements for ensuring and assessing public access to information provided by the authority, information as well as services in the agreement. That may require a public authority to set out its arrangements for ensuring that people with disabilities or members of ethnic minority groups have access to information which it provides to the public. Amendment No. 310C extends the potential range of consultation on a draft equality scheme.

Amendments Nos. 310D to 310H ensure that the Assembly is kept informed when the commission finds difficulty with the public authority's equality scheme and refers the matter to the Secretary of State. Similarly, the Secretary of State must keep the Assembly informed when making a decision on a problematic scheme or on the report of an investigation referred to him by the commission. Given the Assembly's responsibilities for Northern Ireland departments and a wide range of local public authorities, it is right that it should be kept informed in that way. As I mentioned, we expect to have further amendments to Schedule 10 at Report stage.

Amendment No. 155 from my noble and learned friend Lord Archer of Sandwell would impose a duty on every public authority to make appropriate arrangements to fulfil its statutory duty under Clause 60. It also calls for an annual report to be submitted to the equality commission by each public authority.

The Good Friday agreement referred to the implementation of the statutory obligation through equality schemes. This is the format described in Schedule 10. Government Amendment No. 309A will impose a direct obligation on a public authority to prepare a scheme showing how it proposes to fulfil its duties under Clause 60. Schedule 10 describes how the equality commission will have oversight of each public authority's equality scheme.

We are also considering an amendment for Report stage which would require that each public authority review its scheme every five years and inform the commission of its conclusions. The arrangements under Schedule 10, together with the amendments to which I referred, should meet many of the objectives of Amendment No. 155, though within the context of equality schemes to which we are committed by the Good Friday agreement.

Amendments Nos. 156 and 157 from the noble Lord, Lord Lester, would delete the current definition of public authority and replace it with a definition used in the Human Rights Bill—also an amendment supported by the noble and learned Lord, Lord Simon of Glaisdale. During the summer we looked at the different definitions of public authority in Clauses 60 and 61 and we hope to bring them more closely into line. Amendments to be brought forward at Report stage will broaden the definition in Clause 60 to include UK-wide departments and public authorities, which may require special arrangements for dealing with complaints. However, full harmonisation between Clauses 60 and 61 seems impossible.

The idea of an all-purpose definition of public authority based on the human rights legislation may seem attractive, but the European Convention on Human Rights defines public authority very widely, including authorities only some of whose functions are public. The definition of "public authority" which appears in the Human Rights Bill would take in a much broader range of bodies exercising statutory and public functions.

Clauses 60 and 61 impose duties over and above those under the Human Rights Bill and the fair employment legislation. Those additional duties will entail further costs which it is only appropriate to impose on carefully selected bodies. Adopting the Human Rights Bill approach would cast the net too wide and run counter to the need to be selective.

The obligations under Clauses 60 and 61 are difficult ones for public bodies and we must consider carefully to which public bodies they might refer; hence the problem in relation to definition. Accordingly, we do not believe that the human rights legislation definition is appropriate for either Clause 60 or Clause 61. I therefore invite my noble and learned friend to withdraw the amendment.

5.45 p.m.

Lord Simon of Glaisdale

Before the noble Lord sits down perhaps I can ask for elucidation on one point. I seem to recollect that "public authority" under the Human Rights Bill—we were assured—covered broadcasting authorities, certainly the British Broadcasting Corporation. That is a powerful organ and obviously one that ought to comply with the human rights obligations. I am not conversant with the broadcasting arrangements for Northern Ireland but perhaps the Minister could clear that up or otherwise look into the matter and let me know before the next stage.

Lord Dubs

It is a fairly complicated point. Perhaps I can take up the latter suggestion. I shall look into the matter and write to the noble and learned Lord.

Lord Archer of Sandwell

I am grateful to all noble Lords who contributed to this debate. Perhaps I may say at the outset that I wholly agree with the noble Lord, Lord Lester, that the grouping in relation to this amendment is somewhat eccentric. I follow what my noble friend said; that is, that all the amendments deal with the duties imposed on public authorities. I should have thought that that was a somewhat slender logical thread for grouping the amendments. However, as I was not here to contribute an input to the groupings this morning, it hardly lies in my mouth to complain.

In relation to Amendment No. 157, I agree with the noble Lord, Lord Lester, and those noble and noble and learned Lords who supported him. Nothing further from me at this stage will improve the occasion.

As to Amendment No. 155, it does not seem to me—the noble Lord, Lord Cope, agreed—in any way inconsistent with the proposal for the schemes to say that, in addition, public authorities shall build into each stage of their decision-making process a structure of thinking about human rights at that point. It is not inconsistent; in fact it would add something for the reasons I attempted to give earlier. If in addition there was an annual report, it would mean that annually the authority would look at what it had achieved in the previous 12 months and would not have to wait for a period of five years before it took stock. I wholly agree with the point made by my noble friend Lady Lockwood that it might be a protection for local authorities to say, "Well, we have done our best. At every stage we have built into the decision-making process an instruction to look at the human rights situation."

However, this is not the occasion to divide the Committee. It may be a springboard for discussing the matter further and I am sure that my noble friend will be open minded about it. It may be that I did not express myself as effectively as I should have done when I opened the debate. Perhaps when he reads what I said my noble friend may think about it again. For the moment, I am content to ask your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 156:

Page 29, line 12, leave out subsection (3).

The noble Lord said: I thank all noble Lords who participated in the debate on Amendments Nos. 156 and 157—those who disagreed with the amendment as much as those who agreed. It is heartening to have the wisdom of the noble and learned Lord, Lord Simon of Glaisdale, on this subject. I sometimes ask myself why we bother and why we take such care in scrutinising legislation. Who are we trying to address? It is not the wider public who never read our debates and it is not the newspapers. In this case—I hope I do not embarrass the noble Lord, Lord Dubs—I direct my remarks in particular to the noble Lord, Lord Williams of Mostyn, and his advisers because he has responsibility for the Human Rights Bill as well as an input into the present Bill.

Before I explain what I intend to do on the amendment, perhaps I may try one last effort to explain why I think the Government might reconsider. I shall give a hypothetical example. I give the example of a body, say, British Gas or Railtrack, which would plainly be a public authority for the purposes of the Human Rights Bill if it were to discriminate in breach of Article XIV of the convention in a field covered by the convention. If a public authority of that kind were to discriminate directly under Clause 61—we are talking about direct religious discrimination under Clause 61—it is clear that, as a result of the recent decision of the Judicial Committee of the Privy Council, that body would be breaching the common law principle of equal treatment. It is also clear that it would be a public authority covered by the common law administrative law requirement to give equal treatment.

So far—I hope your Lordships follow the way I am trying to explain the position—the hypothetical gas or railway body would be bound by the European Convention on Human Rights under the Human Rights Bill; it would be bound by the common law; and it would be a public authority for the purpose of judicial review and supervisory jurisdiction. It would also be bound by European Community law in an area where equality directives apply. But under Clause 61 it would only be bound if it had been designated by the Minister specifically in subordinate legislation.

That, I suppose, is done for the purpose of clarity. But it would not be clear at all, for the reasons given by the noble and learned Lord, Lord Simon of Glaisdale, because one would have different definitions in respect of the same subject matter—the same subject matter because the Human Rights Bill covers discrimination in some areas and because Clause 61 does as well. We would be in breach of our international treaty obligations were we to create a gap of that kind. It is perfectly clear from the International Covenant on Civil and Political Rights, the discrimination against women convention and the discrimination based on race convention that bodies like Railtrack or British Gas must be bodies with a duty not to discriminate on religious grounds or any other grounds.

I appeal to the Government to think again and to make sure that there is no gap between the definition of a public authority in Clause 61 and the definition of a public authority in the Human Rights Bill. Otherwise, I think we will be in breach of our international legal obligations and we will create a great deal of legal uncertainty for bodies like British Gas, which the noble Lord, Lord Skelmersdale, rightly indicated will be concerned to know their legal position. They will not be much the wiser as a result of the impact of common law and the Human Rights Bill and the mere absence of a designated order under Clause 61.

For those reasons I hope very much that further consideration will be given to the matter. We take some comfort from the Minister's words indicating that there will be an attempt to widen the definition in Clause 61. I was dismayed when he said that there will be a different definition of public authorities in Clause 60 from Clause 61. That would produce another form of uncertainty and inconsistency. After all, sex discrimination, race relations and fair employment legislation does not draw a distinction, as far as concerns respondents, between the positive duty to promote equal opportunity and the negative duty not to discriminate. We urge that both the definitions should be moved in the same direction and made consistent with the Human Rights Bill.

There has been a good debate. I am grateful to everyone who has taken part. For the moment, I beg leave to withdraw the amendment.

The Deputy Chairman of Committees (Lord Ampthill)

The noble Lord has already spoken at some length to Amendment No. 156 and I must therefore give others an opportunity to speak.

Lord Simon of Glaisdale

As this will be a debate to which the Minister may reply, perhaps I may give yet a third reason why the amendment of the noble Lord, Lord Lester, is preferable. The Government give flexibility to their proposed definition under paragraph (e): any other person designated for the purposes of this section by order made by the Secretary of State". We have had far too much of that kind of skeleton legislation which gives extra power to the executive to legislate by order and is not subject to normal and full parliamentary scrutiny. As the Minister is looking at this matter further, I should be grateful if he would also consider that point.

Lord Hylton

The noble Lord, Lord Lester, has drawn our attention to the fact that the list of what constitutes a public authority is different in Clause 60 from the list in Clause 61. He has drawn my attention to the fact that Clause 60(3)(e) has this catch-all saving for what the Secretary of State may do in future whereas Clause 61 does not. That anomaly needs some explanation.

Lord Dubs

I think that I have already replied to the debate. I am not sure that I have very much to add. As I said, the Government are looking at some of these points and we will bring forward amendments at Report stage.

Lord Lester of Herne Hill

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 157 not moved.]

Clause 60 agreed to.

6 p.m.

Lord Archer of Sandwell moved Amendment No. 158:

After Clause 60, insert the following new clause—