COMMONS AMENDMENT (Hansard, 19 July 1999)

§ Baroness Blackstone
My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 2.
In moving this Motion, with the leave of the House I shall speak also to Amendments Nos. 3, 6, 9 and 12 to 32. This group of government amendments was tabled to address three commitments I gave in your Lordships' House to give further consideration to amending Clause 4 to define the scope of non-discrimination notices on the face of the Bill; amending paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing if it refused to receive oral representations from a person it considered to be unsuitable; and arranging for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. I shall deal with each commitment in turn.
I begin with the commitment to consider defining the scope of non-discrimination notices on the face of the Bill. Clause 4 originally contained a regulation-making power which would have allowed the Secretary of State to define the scope of non-discrimination notices. The noble Baroness, Lady Blatch, and my noble friend Lord Ashley were keen to ensure that the scope of non-discrimination notices was defined on the face of the Bill. Unfortunately, my noble friend is not able to be with us tonight and asked me to give his apologies.
I am pleased to say that Amendment No. 2 would in fact define the scope of non-discrimination notices on the face of the Bill. Amendment No. 25 sets out the detailed procedure to apply to finalising action plans. Amendments Nos. 3, 6, 9, 12 to 15, 17, 19 to 23, and 26 to 32 are consequential to those amendments or have been tabled to tidy up the drafting of the Bill. It may be helpful if I outline the key elements of our proposals in relation to non-discrimination notices, as they would make some fundamental changes to the process for issuing and enforcing the requirements in such notices.
However, perhaps I may start by saying that we developed our proposals with a view to addressing the shortcomings which both the Equal Opportunities Commission and the Commission for Racial Equality identified with the existing process in the light of experience. We believe that our proposals go a long way to strengthening the effectiveness of non-discrimination notices in tackling the causes of discriminatory acts that might have been committed and in putting them right. Our proposals have also been developed to take account of the real concerns that we understand have been expressed by businesses and their representatives—the Confederation of British Industry and the Institute of Directors—which have said that it would not be appropriate to allow the commission to prescribe what changes an organisation might need to make.
I now turn to the key elements of our proposals. The amendments would give the commission a new power to identify in a non-discrimination notice, policies, 732 practices, procedures and other arrangements which it believes have led, or contributed, to unlawful acts being committed, and to recommend what changes need to be made to address the unlawful acts and the time-scales in which those changes might be made. The amendments would also give the commission a new power to require an organisation to produce an adequate action plan within a prescribed period which would address within a reasonable time the unlawful acts that have been, or are being, committed. The action plan would be legally binding once final and its implementation would be enforceable by the commission through the courts.
It would be up to the organisation to produce the action plan, taking into account the commission's recommendations. We believe that this is the right approach. The ownership of the action plan must rest with the organisation. However, we have built sufficient opportunities into the process to allow the commission to comment on a draft action plan and provide further comments and recommendations if it thought it appropriate. Ultimately, the commission would be able to challenge through the courts whether an action plan would adequately address the unlawful acts identified in a non-discrimination notice.
As I said in my opening remarks, we believe that the amendments relating to non-discrimination notices would strike the right balance between strengthening the commission's powers to ensure that effective changes are made by an organisation as a result of a non-discrimination notice being issued, and giving the organisation ownership of its action plan.
Turning to Amendments Nos. 16 and 18, during our earlier debates I undertook to consider further an amendment tabled by the noble Baroness, Lady Blatch, which sought to amend paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing where it refused to receive oral representations from a person to whom it reasonably objected as being unsuitable. I am pleased to say that Amendment No. 18 would require the commission to give reasons in writing. Amendment No. 16 is a consequential amendment which places a similar requirement on the commission to give reasons in writing in relation to paragraph 3(7).
Finally, Amendment No. 24 was tabled to address a commitment I made to give further consideration to an amendment tabled by the noble Baroness, Lady Blatch, which sought to arrange for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. Amendment No. 24 would require the commission to put a permanent note on the public register when the requirement in a non-discrimination notice to produce an action plan has been met. As my noble friend Lord Hunt said during our earlier debates, we were sympathetic to the idea behind the amendment tabled by the noble Baroness, Lady Blatch, but it raised a number of practical difficulties.
Perhaps I may explain the reasoning behind Amendment No. 24 and why we have taken a slightly different approach from that in the amendment originally tabled by the noble Baroness. First, it is important to maintain the historical accuracy of the 733 public register. That is why we do not favour an approach which would involve removing names from the register. Secondly, we also believe that it is virtually impossible to note compliance with the primary requirement not to commit unlawful acts in a non-discrimination notice. That requirement is an ongoing requirement. Although it may be possible to say at a particular point of time that there appears to be compliance with a requirement, continuing compliance is much more difficult to show. It may be helpful if I give noble Lords an example.
It may be that a non-discrimination notice includes a finding that an organisation has committed an unlawful act by not providing access to a disabled lavatory. To deal with this, the action plan may state that the organisation would provide a disabled lavatory by a certain time. The organisation may comply but then decide that as that lavatory was not used very often, it should be used as storage space. This would constitute committing an unlawful act of the same kind as that stated in the original non-discrimination notice and would be a contravention of the notice.
We believe that any attempt to try to note compliance with the primary requirement not to commit unlawful acts is likely to lead to arguments and even litigation about whether an organisation has complied with the non-discrimination notice and whether it continues to comply with it. The option proposed in Amendment No. 24 is, we believe, a simpler and more objective test for noting the register.
Finally, it is helpful to remind ourselves of the experience of the existing equality commissions with non-discrimination notices. If we look back at the sex and race legislation, it is, I am glad to say, very rare that organisations are so resistant to advice on how to adhere to the legislation as to have a non-discrimination notice issued. The CRE has only issued 32 non-discrimination notices in the past 20 years or so. I very much hope and believe that that is likely to be the case with the DRC.
Given the fact that non-discrimination notices will only be issued to organisations which are being pretty resistant when all other attempts to resolve matters have failed, we believe it is right that they should be put on a public register. However, by bringing forward Amendment No. 24, we are ensuring that where an action plan is produced by an organisation, that is also on the register. I commend the amendment to the House.

§ Baroness Blatch
My Lords, I am enormously grateful to the noble Baroness for the care with which these amendments have been explained. Indeed, one thing occurred to me during the course of the introduction of the amendments to the House; namely, the characteristic influence that this place has had on yet another piece of legislation. I think the quality of the attention and care taken by Members of this House really bears considerable fruit when such issues arrive in another place. It is worth recording that fact.
734 I am delighted to see that the definition is now clear on the face of the Bill by way of the earlier amendments. The refusal to receive oral representations, and to have reasons why that should be, is also very important. However, I must stress just a little disappointment about the removal of names from the register. I can think of a number of examples where that action would be fairly straightforward. I could take the example used by the noble Baroness, but there are others. I have in mind putting in a lift or some means of getting from one floor to another, or indeed installing toilet facilities. All those examples seem to me straightforward. Where an employer very quickly understands that deficit and very readily puts it right, it seems a great pity that the name cannot be removed from the register. After all, some people in this country commit quite serious crime but, after a certain period when the penalty has been paid, that is removed from the records. It is most unfortunate that such names will not be removed from the register.
Nevertheless, I do not wish to sound churlish at this stage of the proceedings. I believe that the Government have gone some way to recognise that where a company is readily compliant and where that compliance is sustained, there is at least a record to that effect; and that record will remain. It is just a pity that there cannot be complete removal from the register. I support these amendments.

§ Lord Addington
My Lords, the noble Lord, Lord Rix, said that he would like to support these amendments en bloc. Generally speaking, I support virtually everything that appears on the Marshalled List. I may have one or two small disagreements about how things might have been done better or sooner but, on the whole, we have achieved much of what we aimed for throughout the proceedings on the Bill. I am very glad to be able to welcome these amendments. In future, when a Bill starts in this House, I hope that we will not have to wait for the matter to go the House of Commons before we receive such welcome news.

§ Lord Swinfen
My Lords, I, too, should like to welcome the amendments which have been brought forward tonight. They will make the Bill much more practical and a very much better and workable piece of legislation. People out in the wide world will be able to understand it much more easily than was the case when the Bill left this House.

§ Baroness Blackstone
My Lords, I am very grateful to the noble Baroness, Lady Blatch, and to the noble Lords, Lord Swinfen, Lord Addington, and Lord Rix, for what they have said. In particular, the noble Baroness, Lady Blatch, emphasised the fact that this House has always shown a tremendous commitment to issues surrounding disability. I think that the work that was done in this House on the Bill is just a symbol of that commitment. When these issues were discussed initially in this House, I said that we would look at them again. We have been able to do so, and I am very glad to hear the welcome that has been given to the changes we have made.