Lords Sitting of 11 March 1999

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Oxford.): The LORD CHANCELLOR on the Woolsack.
The Earl of Snowdon—Took the Oath.

Western European Union
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
Whether they support the proposal that the next Secretary-General of the Western European Union should have a senior position within the European Union, and that the two organisations should be merged.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government believe that such proposals are premature. In taking forward our initiative on European security and defence since St. Malo, we have made clear that to begin with institutional issues would be the wrong approach. Her Majesty's Government have instead sought to focus more on practicalities, including the need for Europeans to achieve sufficient political will to act, and on the capabilities necessary to underpin that action, than on institutional restructuring.
Lord Hardy of Wath: My Lords, I welcome the Government's approach. But is not there cause for some anxiety in that the eager pursuit of the European Union common, foreign and security policy, while revealing considerable political appetite, is accompanied by continuing inadequate and grossly unfairly-borne security provision and may eventually lead to some diminishing of NATO? At the same time, while the Council of Ministers or its parliamentary assembly has not been allowed to be as useful as it might be, will the Government discourage any attempt either to degrade the WEU or to see its engorgement within EU, at least until Europe is possessed of a more appropriate and balanced capability?
Baroness Symons of Vernham Dean: My Lords, the anxieties expressed by my noble friend are misplaced on this occasion. On 24th February the WEU international security directors in Bonn endorsed the British and French proposals to keep the debate to these practical issues. Indeed, the WEU then said that it thought to do otherwise would not be sensible and it wanted to avoid a premature position on institutional issues. I remind my noble friend that these matters will be discussed further at the Washington NATO summit on 23rd and 25th April; and that there is a forthcoming WEU
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ministerial council in Bremen on 10th and 11th May when I am sure that all these issues will again be drawn together.
Lord Moynihan: My Lords, does the Minister agree with the US Secretary of State for Defence, William Cohen? He welcomed the burden-sharing aspects of the European initiative to assume an increase in defence responsibilities, but said that such new responsibilities should make Europeans rethink their current tendency to cut defence spending and forces.
Baroness Symons of Vernham Dean: My Lords, there is a substantial amount of agreement on these issues. I, too, heard Mr. Cohen make the point about burden sharing; it has been made directly in ministerial meetings. I am sure that the issues to which the noble Lord, Lord Moynihan, refers will be discussed at length at the Washington summit at the end of April.
Lord Wallace of Saltaire: My Lords, those of us who welcome this new initiative see the institutional logic eventually as being a merger between WEU and the EU. When it comes to the appointment of a new Secretary-General of the Council who is to be in charge of common, foreign and security policy, will the Minister bear in mind that the underlying logic of the Question of the noble Lord, Lord Hardy, is that the person who becomes Secretary-General of the WEU should also become Secretary-General of the Council?
Baroness Symons of Vernham Dean: My Lords, I am aware that that is the view of some noble Lords in relation to the institutional logic; indeed, I am also aware that it is a view expressed by some of our friends in Germany. I sought to point out in answer to my noble friend Lord Hardy that Her Majesty's Government believe that, first, we must find a way whereby we can agree the political issues and a way of supporting those decisions before we deal with the institutional issues which the noble Lord raised.
Lord Chalfont: My Lords, are her Majesty's Government completely happy that the strengthening of a European security and defence entity will not damage NATO; and are the American Government also happy about that? We must remember that it is NATO that keeps the United States locked into the defence of western Europe.
Baroness Symons of Vernham Dean: My Lords, I can assure the noble Lord on that point. It was a point my right honourable friend the Prime Minister made at the time of announcing the St. Malo initiative, and on which I have been able to reassure your Lordships several times recently when we discussed European defence.
The point of the St. Malo declaration is to try to end the sterile controversies that we have had in the region of "who takes leads over what". We want to focus on the practical requirements for greater European effectiveness in defence and foreign policy. Therefore, I can assure the noble Lord that the St. Malo initiative

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has been welcomed across the board not only by our European partners, but also—importantly—by our NATO allies. Her Majesty's Government believe that it represents an historic opportunity to make progress and the United Kingdom will do all we can to continue to lead the way on this issue.
Lord Bruce of Donington: My Lords, is my noble friend aware that not every member state inside the European Union is prepared to contribute anything to the defence of Europe—either expenditure on or the provision of troops? As we well know in the case of Belgium, it even denied one of the other member states— ourselves—the necessary armament to pursue our defence of Europe—which is probably larger than that of any other member state in Europe.
Baroness Symons of Vernham Dean: My Lords, I am fully aware that not all members of the WEU are full members; some are associate members, some are observer members and some are associate partners. On a previous occasion when we discussed the WEU I suggested putting some sort of diagram into the Library of the House, which has now been done, and which I hope fully expresses the complexity of these difficult issues.
The Earl of Onslow: My Lords, is it not true about European foreign policy that when the Quai d'Orsay, Whitehall and what will soon again be called the Wilhelmstrasse get their act together and show a political will to act for the common foreign policy, those common foreign policy objectives will be carried out? Until the political will exists for Europe to act as a concerted—I use the word in a Castlereaghan sense—Europe, it does not matter what the organisation is. When Europe behaves as though with a combined foreign policy it will have one; and whatever we do until then, it will not have one.
Baroness Symons of Vernham Dean: My Lords, I am not entirely sure that the noble Earl asked a question. However, I believe that his points are adequately covered by the CFSP provisions in the Amsterdam Treaty. I reiterate to the noble Earl, as I have done to your Lordships on a number of occasions, that the cornerstone of our European defence policy will of course remain NATO. I stress to the noble Earl that I think his points are covered in the Amsterdam Treaty.
Lord Ponsonby of Shulbrede: My Lords, although Her Majesty's Government may wish to concentrate on practical issues, does the Minister understand that others are looking at the institutional arrangements within Europe? Does she agree that there are 28 members of the WEU but only 15 of the EU? One of the great strengths of the WEU in recent years has been to bring countries outside NATO and the EU into considering European strategic defence issues? Surely that great strength of the WEU should be preserved in whatever institutional arrangements we have in the future.
Baroness Symons of Vernham Dean: My Lords, my noble friend is right. The most recent example of what
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he suggests as being a sensible way of operating has been the Contact Group on Kosovo. However, I should point out to my noble friend that this issue about the institutional aspects versus the practical aspects was discussed in Bonn on 24th February. While it is true that our German friends are keen to discuss these institutional issues, the rest of the WEU agreed with Her Majesty's Government that it was more sensible to stick to the practical issues and deal with them first.

Local Government Act 1972: Section 137
3.11 p.m.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer asked Her Majesty's Government:
To what extent the provisions of Section 137 of the Local Government Act 1972 have been used by local councils to provide new and improved services.
Baroness Farrington of Ribbleton: My Lords, research published last November found that Section 137 is used by an increasing number of parish and town councils to provide a wide range of activities, including funding for youth activities, schools and playgroups.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for her reply. In the light of that, would she consider the request of the National Association of Local Councils that the funding under this provision, which at present stands at £3.50 per head, be raised to at least £5 per head? Further, does not the Minister share the frustration of those parish and town councils caused by the fact that they cannot provide some of the basic facilities, such as playgroups and youth clubs, that they would like to be able to offer to their communities?
Baroness Farrington of Ribbleton: My Lords, it is most important to recognise that there has been an increase by local councils in the use of Section 137 funding. Indeed, 29 per cent. were using it in 1989–90 and the percentage has now increased to 56 per cent. The Government are reviewing Section 137 in the light of the new duty to promote well being. We want to consider representations from NALC as part of that process.
Lord Burlison: My Lords, as I am someone who is not steeped in local government, can my noble friend the Minister explain to me the nature of the provisions of Section 137 of the Local Government Act 1972?
Baroness Farrington of Ribbleton: My Lords, I shall do so, although I am conscious of the fact that someone may accuse me of reading.
Section 137 provides a local authority with power to spend a limited amount on activities for which it has no specific power but which will bring direct benefit to the area,
"or any part of it or all or some of the inhabitants".

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As the noble Baroness, Lady Miller, said, there is a current limit of £3.50 per local government elector, and it is between £1.90 and £3.80 per capita for district and county councils.
Lord McNally: My Lords, has the Minister heard the very eloquent speeches of her noble friend Lord Williams of Mostyn about the need for community and local action on crime prevention? Is this not a role that would be perfectly suited to parish councils if they were given the necessary resources?
Baroness Farrington of Ribbleton: My Lords, I am fully aware of the commitment of my noble friend Lord Williams of Mostyn to combat crime. This is certainly one of those areas in which co-operation can take place. However, I return to my original point; namely, that not all local councils need to resort to this funding. They are able to use funds which are available to them without resorting to Section 137.
Lord Monkswell: My Lords, can my noble friend the Minister confirm that the per capita amount that these local authorities are allowed to spend is in fact what used to be the product of the penny rate? Are we talking about something which is still a hangover from the poll tax days? Further, in considering the review of this section of the 1972 Act, will the Government ensure that the ability to pay will be taken into account?
Baroness Farrington of Ribbleton: My Lords, I believe that my noble friend Lord Monkswell will be surprised by my response. Indeed, this is one of the matters which may not be blamed on the poll tax. It actually pre-dated it. The department has stated its intention to promote a duty of well-being, which will broaden and allow a wider range of activities in this area. Obviously we will want to consult with both the Local Government Association and the National Association of Local Councils which are very helpful in this respect.

Gibraltar
3.16 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
What Gibraltar Government proposals or options they are considering to strengthen the constitutional status of Gibraltar as a British territory.
Baroness Symons of Vernham Dean: My Lords, Gibraltar is a United Kingdom overseas territory whose constitutional relationship to the UK is defined under the Gibraltar Constitution Order 1969. That status is secure and unquestionable. The Government of Gibraltar have expressed interest in exploring changes to the constitution. We have held exploratory, technical discussions with representatives of the Government of Gibraltar but have received no formal proposals. We have made clear that we are willing to listen to ideas that are realistic and compatible with the Treaty of Utrecht, and other international obligations.
Lord Merrivale: My Lords, I thank the Minister for her Answer. However, can she say when it is expected that
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final proposals or options will be received from the Gibraltar Government and ultimately acted upon? Further, does the Minister agree that a strengthening of Gibraltar's constitutional status as a British territory would be realistic and compatible with the Treaty of Utrecht, while affecting Spain's capability of harassment and defamation?
Baroness Symons of Vernham Dean: My Lords, I cannot tell the noble Lord when the Government of Gibraltar may see fit to table formal proposals in this respect. As I said, there have been some informal proposals, and some technical discussions about them have taken place. However, no formal proposals have been put on the table. Of course, we are willing to listen to any ideas put forward by the Government of Gibraltar, but they must be consistent with the Treaty of Utrecht and with our international obligations. I believe that the position of Gibraltar as an overseas territory is a strong one, given what was said in the 1969 preamble. But it is a unique position because of the existence of the Treaty of Utrecht.
Baroness Williams of Crosby: My Lords, given the very strong links that were expressed in the treaty between Gibraltar and the United Kingdom and the interests of the 25, 000 citizens of Gibraltar, will the Minister also consider the interests of the 400, 000 British citizens currently resident in Spain and seek to ask the Prime Ministers when they meet shortly to try to find good answers to the strained relations between Spain and Gibraltar?
Baroness Symons of Vernham Dean: My Lords, of course we would like to see those strained relations improved. In his discussions, I believe that my right honourable friend the Foreign Secretary has been able to improve the situation, especially around the border area. As the noble Baroness indicated, there will be a summit meeting between the two Prime Ministers in April, when we hope that the situation will be improved.
Lord Janner of Braunstone: My Lords, does my noble friend agree that one excellent way of improving the status of Gibraltar would be to give citizens of Gibraltar some form of representation in the United Kingdom Parliament, following the precedent which has worked so well for so long in the United States? Has that proposal been discussed informally or formally with the Gibraltar Government? Have Her Majesty's Government considered that and is it on the table for future consideration?
Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government will discuss sensible suggestions that are brought forward by the Government of Gibraltar to strengthen their position. I hope that when we are able to discuss the White Paper, which will be published next week, which the Government have prepared on the positions of the overseas territories, it will contain some further indications of ways of strengthening links with overseas territories, not specifically with Gibraltar but right across the board. However, I stress that we cannot

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do just as we wish in relation to Gibraltar. The Treaty of Utrecht exists, and it contains an important provision which I know causes a great deal of difficulty but which nevertheless is enshrined in international law.
Lord Renton of Mount Harry: My Lords, will the Minister pay tribute to the Governor of Gibraltar, Sir Richard Luce—I spent a day and a night there recently—and the work he is doing to find a solution to the real problems which exist on the Spanish/Gibraltar border at the moment? Is not the fact of the matter that the Spaniards have an infinite capacity to delay traffic, either pedestrian or car traffic, at the La Linea/Gibraltar border? This situation did not exist at the time the Treaty of Utrecht was written and it therefore requires an imaginative solution to bring the sides together. No one suffers more from this inconvenience than the Gibraltarians themselves.
Baroness Symons of Vernham Dean: My Lords, of course I am happy to pay tribute to the Governor of Gibraltar. His is not an easy job and it certainly has not been easy over the past few weeks. The noble Lord is, of course, right that some of the traffic delays have been quite intolerable. At some stages over the past few weeks there have been delays lasting several hours. I am happy to say that at the moment, as a result of the interventions of both my right honourable friends, the delays are less than they were. They are about an hour now. I believe that that is still unacceptable and is still inconsistent with the light customs check which would be perfectly acceptable. The delays continue to cause great anxiety. Of course we hope that the meeting that is now scheduled to take place between the two Prime Ministers will address this and other important constitutional issues with regard to Gibraltar.
Lord Monson: My Lords, does the Minister agree that the inhabitants of the Canary Islands, which are semi-detached from the European Union, can vote in elections for the European Parliament, as can the inhabitants of Guadaloupe and Martinique in the Caribbean, the inhabitants of Reunion in the Indian Ocean and the inhabitants of French Polynesia and New Caledonia in the Pacific, more than 11, 000 miles away from Brussels? Why cannot the people of Gibraltar be given the same rights?
Baroness Symons of Vernham Dean: My Lords, as luck would have it, the noble Viscount, Lord Waverley, tabled a similar Question for Written Answer recently. I could certainly give the noble Lord a long list of those dependent territories that are linked with European Union states which are able to exercise votes. There are different constitutional relationships. Some of these overseas territories fall into the category of départements outre-mer of the French and therefore they are treated as part of mainland France for those reasons. There are a number of different relationships among some of the territories which are linked to Spain itself. That is another
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interesting point. It all depends on the constitutional basis of the overseas territories, their rights and their citizens' rights with regard to European elections.
Lord Moynihan: My Lords, does the Minister accept that the Government's repeated failure to reject the present Spanish proposals for joint sovereignty and their refusal to introduce emergency legislation to extend the European Parliament franchise to Gibraltarians in accordance with the European Court of Human Rights judgment sends a mixed message to the people of Gibraltar about this Government's commitment to their interests, their future and their constitutional status?
Baroness Symons of Vernham Dean: My Lords, I am afraid that I must remind the noble Lord that when his party was in power it adopted a similar position to that of Her Majesty's Government. For example, as regards the European Court—
Noble Lords: Answer!
Baroness Symons of Vernham Dean: My Lords, I shall answer the noble Lord if he will allow me to do so. The Opposition when in government contested that case on exactly the same grounds as Her Majesty's Government have done. When I previously answered questions on this matter in your Lordships' House I said that we were taking up this issue. Since then it has been taken up by Sir Stephen Wall in Brussels and amendments have been tabled to the 1976 Act. What has happened is exactly what I told your Lordships would happen. We are also lobbying the other European partner countries to encourage them to support what they should support, which is the ECHR judgment.
On the other point about the Spanish proposals, the Opposition, when in government, signed up to the Brussels process in 1984. That process accepts that issues of sovereignty can be discussed. That is the basis on which Her Majesty's Government are proceeding. If the noble Lord did his homework—I know he is assiduous on these points—he would discover that his party, when in office, held the same position as the Government on both those points.
The Earl of Onslow: My Lords—
Noble Lords: Next Question!

UNSCOM: Washington Post Allegations
3.26 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether American intelligence agencies have used UNSCOM teams in Iraq as cover for national intelligence activities.
Baroness Symons of Vernham Dean: My Lords, this is a matter for the United States. But the United States Government have stated publicly and repeatedly

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that all activities by US nationals assigned to UNSCOM, and all information exchanges between the US and UNSCOM, have been strictly in pursuit of UNSCOM's mandate to dismantle Iraq's weapons of mass destruction capability.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that, I suppose, unavoidable Answer. Is she aware that in the extremely detailed and carefully researched report in the Washington Post of 2nd March it is stated that the British Government asked the American Administration in March 1997 to explain a number of irregular signals activity incidents between UNSCOM and various other outside sources? Does she accept that the report deepens the unhappiness many of us feel about United States exploitation of the UN through UNSCOM and the implications for the acceptability of the UN as an inspecting body? Does she accept that this may have damaged the reputation of the UN and that steps may be needed to restore that reputation?
Baroness Symons of Vernham Dean: My Lords, the allegations published in the Washington Post on 2nd March were, of course, later picked up in the British press. They are part of what appears to be a prolonged campaign against UNSCOM and its strongest supporters, including the United States and the United Kingdom. There is little I can add except to say that the allegations have been completely rejected by the United States Government.
Lord Moynihan: My Lords, no doubt the Minister has been equally assiduous in her homework. What is her reaction to suggestions that the recent espionage allegations were a contributory factor in Richard Butler's decision to step down from UNSCOM when his two-year term ends in June?
Baroness Symons of Vernham Dean: My Lords, I do not believe that that is borne out by what Mr. Butler has said. In dealing with questions of this nature we get into a little difficulty. I hope the noble Lord will accept from me that it is the policy of this Government, as it was of his own party when in government—it is a longstanding policy—not to comment on matters which have a bearing on intelligence.
Lord Mishcon: My Lords, is the Minister aware that she is outstandingly good?

Business
3.31 p.m.
Lord Carter: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, the House will rise for the Easter Recess on Wednesday 31st March and return on Monday 12th April. The House will sit at 2.30 p.m. on Wednesday 31st March.

Criminal Cases Review (Insanity) Bill [H.L.]
Lord Ackner: My Lords, I beg to introduce a Bill to make provision enabling verdicts of guilty but insane to be referred to and reviewed by the Court of Appeal. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. — (Lord Ackner.)
On Question, Bill read a first time, and to be printed.

Health Bill [H.L.]
Lord Hunt of Kings Heath: My Lords, on behalf of my noble friend Lady Hayman, I beg to move the Motion standing in her name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 and 2,

Schedule 1,

Clauses 3 to 14,

Schedule 2,

Clauses 15 to 47,

Schedule 3,

Clauses 48 to 50,

Schedules 4 and 5,

Clauses 51 to 54. —(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Disability Rights Commission Bill [H.L.]
3.33 p.m.
Report received.
Clause 2 [General functions]:
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 1:
Page 1, line 19, at end insert ("and the provisions of any Act passed after this Act is passed which concern disability discrimination").
The noble Lord said: My Lords, in moving Amendment No. 1 I wish to speak also to Amendment No. 15. I wish to record my warm appreciation of the splendid work on the briefings of Agnes Fletcher of RADAR and her colleagues with the various disability organisations which have helped, such as the Royal National Institute for the Blind, SCOPE, MIND, the RNTD, Rights Now Campaign, MENCAP, and the British Council of Disabled People.
These amendments are straightforward and sensible. Amendment No. 1 gives the disability rights commission the right to keep under review any future discrimination legislation, whatever form it takes. It gives the commission the power to advise on and assist in proceedings under any new piece of civil rights or anti-discrimination legislation. I believe that it is an absolutely crucial amendment to prepare for the future. There will clearly be more legislation affecting disabled people enacted by this and other governments.
The Government were right to mention the Disability Discrimination Act in the Bill because, at the moment, it is the only disability discrimination legislation, although the Human Rights Act is relevant. But mentioning only the DDA could be interpreted as a signal that the intention is to amend only the DDA in future whereas other and different measures may be introduced. As we learn from experience, our ideas will develop and no doubt the DDA will be amended. But we cannot forecast how a future government will act in relation to disability discrimination. There may be other relevant legislation. The amendment prepares for all possibilities in the future. I would greatly welcome any reassurance that the Government are able to give on this amendment. I beg to move.
Lord Rix: My Lords, I wish to support the amendment of the noble Lord, Lord Ashley, which extends the clause to cover any future Act which covers disability discrimination. Perhaps I may also say a few words in support of the existing powers under this clause to keep anti-discrimination legislation under review. This is most important in the context of the DDA which, as the Government freely admit, is a flawed piece of legislation. One particular lacuna is in respect of the role of the police in dealing with the public.
Last month's MacPherson report, published after the inquiry into the tragic death of Stephen Lawrence, highlighted the problem of institutionalised racism within the Metropolitan Police Force, and indeed within all sectors of our society. The Home Office acted swiftly, both in its contempt for racism of any description and in bringing forward practical measures to tackle witting and unwitting racism in public life.
One of the fundamental linchpins of this strategy is the pledge to amend the Race Relations Act to allow the Commission for Racial Equality to investigate possible discriminatory practices within Britain's police forces. In order to achieve parity of esteem, I would ask the Minister to give your Lordships an undertaking that the Government will review the position of the police within the Disability Discrimination Act, with a view to enabling the disability rights commission to undertake more comprehensive investigations into discriminatory practices.
The police are currently covered as service providers under Part III of the DDA, but this excludes the operation of their statutory functions such as arresting or surveilling a suspect. Even duties such as dealing with 999 calls and powers to stop and search may be outside the remit of the Act. These are vital areas of the police's work in dealing with the public and should be tightened up.
This is not a matter of political correctness. I am well aware that most police officers do their utmost to assist visibly disabled people in the context of their duties, but my concern is for those with less obvious disabilities, such as learning disabilities or mental health problems, which may be, occasionally, or quite often, less apparent, and whose innocent behaviour might provoke
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public prejudice. A man with learning disabilities who represents MENCAP on a number of national and international committees found himself thrown off a bus by the police on the grounds that his mere presence made another passenger uncomfortable. Fortunately, he was not arrested in this incident. He has also been stopped and searched a number of times by the police while behaving entirely innocently. Of course, these sorts of examples highlight the difficulties which can arise when people are not terribly articulate in describing past events, but they cannot be used as a mask for discrimination, which should not be tolerated in any aspect of the police's work. May I therefore urge the Minister to clarify whether the disability rights commission will be permitted to investigate this lacuna under its obligation to keep the DDA under review as prescribed in this subsection?
Lord Swinfen: My Lords, I wish briefly to support the amendments. The disability rights commission should also be looking at all legislation to see how it affects people with disabilities. I have been speaking in your Lordships' House on the question of disability for a number of years. Very rarely have the Bills on which I have been speaking specifically dealt with disability. But they have had an effect—or would have had an effect—on people with disabilities, and some of those effects could have been detrimental. Therefore, the disability rights commission should look at all legislation.
Lord Campbell of Croy: My Lords, the noble Lord, Lord Rix, has raised the question of the police and where they come in on this matter. It is a very interesting point. I would only add to what he said that members of the public who unfortunately suffer from mental illness as well as mental handicap—that is what the noble Lord, Lord Rix, referred to—can be mistaken on public transport and elsewhere because they cannot express themselves very well. They look a bit odd, as if they are drug addicts and have been taking drugs. This is a particularly important area where the police ought to be very well informed and instructed beforehand.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, as my noble friend has said, these amendments seek to provide on the face of the Bill for the disability rights commission to keep under review the working of any legislation passed in future which, in whole or in part, concerns disability discrimination, and to provide for it to assist individuals in proceeding under any such legislation.
I must say at the outset that in our White Paper, Promoting disabled people's rights, we proposed that the DRC should have a duty to advise government on any appropriate subsequent legislation and the power to assist individuals with complaints as appropriate under any subsequent legislation dealing with discrimination against disabled people. I hope that that deals with the point raised by the noble Lord, Lord Swinfen.
However, I do not believe it would be right to seek to pre-empt decisions about what "appropriate" means in terms of future legislation and, in doing so, bypass

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detailed parliamentary scrutiny of the arrangements. For that reason alone I cannot support these amendments. Also they are unnecessary, as any future legislation could be used to make appropriate amendments to the Disability Rights Commission Act. With some further explanation of the Government's intentions, I hope I can persuade my noble friend and the other noble Lords who have put their name to these amendments to withdraw them.
The Disability Rights Task Force is considering a wide range of issues that affect disabled people with a view to making recommendations on securing comprehensive and enforceable civil rights. One part of that consideration has been the role and functions of the commission. The Government's commitment in this area is clear for all to see: we have built on the task force's recommendations and are today—not many months after having received those recommendations— taking a Bill through this House to establish a disability rights commission.
The next set of recommendations are due to be provided to government later this year. I can assure noble Lords that, just as we took seriously recommendations about the commission, so we shall take seriously the further recommendations. We will examine carefully the role of the commission in relation to any proposals which may evolve from those recommendations.
I say to the noble Lord, Lord Rix, that the task force is already examining issues concerning the police. I accept that there is a great deal of concern about police actions in certain areas and indeed in relation to the disabled. I accept the comments made by the noble Lord, Lord Campbell of Croy. In advance of setting up the Commission, this matter is already being examined.
As new legislation is proposed concerning disability discrimination, that will be the time to consider changes to the role and functions of the commission. It would be a mistake to do so beforehand. It requires us to make quite sweeping assumptions, which may well not be right in the longer term. I need hardly state that Parliament is the proper place for such scrutiny, and it is Parliament which should make these judgments when we know what any new legislation is intended to achieve.
I hope, therefore, that my noble friend and the noble Lords, Lord Rix and Lord Swinfen, will agree to withdraw their amendments.
Lord Ashley of Stoke: My Lords, I am very surprised at my noble friend's comments. There is absolutely no question of pre-empting parliamentary scrutiny. The object is basically to keep under review any possible future discrimination. That kind of planning and foresight are necessary. I cannot see how my noble friend can interpret this in any way as pre-empting parliamentary scrutiny. No one would dream of doing that and it is not the object of these amendments. I am sorry that she raised that particular point. Her comments are not valid.
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That said, given the pressure of time, and recognising that my noble friend has undertaken to consider these points seriously, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 2:
Page 1, line 19, at end insert ("; and
( ) to keep under review those parts of the Human Rights Act 1998 which it deems applicable to the elimination of discrimination against disabled people. ").
The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 16 and 17.
In Committee, in relation to the Human Rights Act, my noble friend the Minister said that this provision had been left to regulations because of the need for "a degree of flexibility" so as to allow response to changing circumstances and needs, and also to review the powers of the commission in the light of experience.
The amendment provides only general powers. We do not seek specific powers in the sense of my noble friend's interpretation. Although general, these powers are important for the commission in relation to human rights. I admit that regulations will still be necessary and will provide whatever flexibility the Government need. I therefore see no reason why the Government are unable to accept these amendments. If everything is left to regulations there is a possibility that a subsequent government could easily remove the powers. That is the last thing we want. I admit that it is an unlikely event; however, it is a possibility.
The reason for referring to the Human Rights Act on the face of the Bill is that it is profoundly important. As the Human Rights Act is enforced, its potential as a significant factor for ending discrimination against disabled people will be crucial. Its importance cannot be ignored; nor indeed can it be sidelined.
I am afraid that I am not impressed by the Government's argument that many of the provisions of the Human Rights Act will not come into force until the year 2000 and therefore should be left to regulations. Surely timing is a poor reason for objecting to these amendments. We are not concerned about when the provisions of the Human Rights Act operate, but about whether or not the workings of the provisions relevant to discrimination should be considered by the commission. That is a clear, straightforward issue.
The amendment to Clause 6 provides for the commission to assist with proceedings that are relevant to the Human Rights Act. If disabled people claim that they are being denied their rights and are being discriminated against, it is important for the commission to support them. This amendment removes any element of doubt that it can do so.
The House will note that the Human Rights Act covers education, which the Disability Discrimination Act does not. That is an important exclusion. Disabled people will be able to protest against discrimination in education only via the Human Rights Act. It is therefore not in the least surprising that disabled people feel strongly about this human rights amendment. The

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Human Rights Act is a principle of great importance for them in relation to public bodies. I hope that my noble friend will be rather more forthcoming in relation to these amendments than she was on the previous ones.
3.45 p.m.
Lord Renton: My Lords, I wish only to support this amendment. In doing so, I should point out that subsection (1) of Clause 2 defines the commission's duties. Among those duties the commission is, under subsection (1)(c),
"to keep under review the working of the Disability Discrimination Act 1995".
There is a rule that if one Act of Parliament is mentioned in a statute and others are not mentioned, the others can be ignored. We do not want that to happen. As a precaution, bearing in mind that the Human Rights Act 1998 is now part of our law, the commission should have a specific duty to consider the way in which it can affect the rights of disabled people.
I hope that I am not out of order in mentioning this point in passing. It is interesting to note that subsections (2), (3) and (5) of Clause 2 describe the powers that the Government seek for the commission. That is fair enough. However, subsection (1) should describe the commission's duties fully. That will not be done unless the Human Rights Act is mentioned.
It is arguable that another sub-paragraph should be inserted as well as that in Amendment No. 2 to provide that the commission should consider any other Act of Parliament that may be relevant to the rights of disabled people.
Lord Rix: My Lords, in speaking to these amendments, particularly Amendment No. 17, to which my name is attached, I also support the view that the disability rights commission should have a role in assisting disabled people to bring cases under the Human Rights Act. Broadly, under the DDA, the prohibition against discrimination in the provision of goods, services and facilities, which were mentioned by the noble Lord, Lord Ashley of Stoke, does not apply to education. However, under Article 2 of the first protocol of the Human Rights Convention, one could argue that a disabled pupil has been discriminated against and his or her right to education taken away.
Another example is that, if people with learning disabilities are sterilised, it could be argued that their right to family life has been taken away. It is therefore right and proper for the disability rights commission to support individuals in such cases, especially if that might mean that the rights of disabled people are subsequently strengthened or clarified.
Lord Swinfen: My Lords, grouped with Amendment No. 2 is my Amendment No. 16 which I tabled at the request of the Law Society of Scotland. The amendment is designed to clarify the extent of Clause 6 which applies to proceedings under the Disability Discrimination Act 1995 and proceedings where an
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individual who has a disability relies on a matter relating to that disability. It makes no reference to the Scotland Act 1998 or the Human Rights Act 1998.
The amendment is designed to probe the extent of the application of Clause 6. Discrimination issues are reserved to the United Kingdom Parliament under the Scotland Act 1998 and could arise in terms of the Human Rights Act 1998 in such a way as to reduce the effect of Scottish legislation. Will Clause 6 cover such issues, or is it limited in its effect?
Lord Addington: My Lords, the idea that human rights should not be linked in a direct way with the disability rights commission is basically absurd for the reasons we have heard. The two are bound to connect. If we believe in joined-up government, indeed vaguely logical government, the two must be connected.
Certain parts of our legislation have for various reasons ignored aspects of the lives of disabled people. Education is one and some aspects of medical practice are another.
Amendment No. 17 in the name of the noble Lord, Lord Ashley, is possibly the one that would have the best chance of succeeding. However, the amendments try to correct the situation. As the noble Lord, Lord Renton, pointed out, if something is not mentioned in the context, it is ignored. Surely we must bring the most fundamental piece of legislation on to the face of the Bill if we want a provision that covers the area fundamentally and thoroughly. Something like the amendment must be on the face of the Bill to give it a chance of having real coverage.
Earl Russell: My Lords, I do not know whether the Minister is about to make the reply suggested by the noble Lord, Lord Ashley of Stoke, that the Government can safely afford to rely on regulation. If so, the House would find that reply a great deal more persuasive were the Minister to say that he shares the view that this House is, as it affirmed on 20th October 1994, free to vote on subordinate legislation. If he does not reaffirm that, then the reassurance he would give by offering regulations would be limited.
Baroness Blatch: My Lords, I strongly sympathise with the amendments put down by the noble Lord, Lord Ashley. Perhaps I may make a suggestion pre-empting what the Minister may say. I suspect that he will not accept the amendments. If so, the point raised by my noble friend Lord Renton applies, that if one mentions one Act in a piece of legislation, by definition that subordinates all others. I wonder whether the words "all relevant" legislation would do: in other words, all subsequent Acts of Parliament that impact on people with disabilities in any way, including the Human Rights Act, should be kept under review by the commission. It seems to me that one of its primary acts will be to oversee and review the Disability Discrimination Act. However, there are many other Acts of Parliament which will impact on and have an effect on people with disabilities. I suggest the words

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"all relevant Acts of Parliament"; that is, subsequent Acts. I wonder whether that would be considered by the Minister and the noble Lord, Lord Ashley.
Lord Hunt of Kings Heath: My Lords, I welcome the opportunity to return to the debate on the amendments which seek to place references to the Human Rights Act on the face of the Bill. It gives me a further opportunity to clarify in more detail the Government's intentions. I hope that in so doing I can reassure noble Lords on the important issues that they have raised today.
The first of the amendments tabled by my noble friend Lord Ashley relates to Clause 2 and seeks to make provision on the face of the Bill for the disability rights commission to have a duty to keep under review those parts of the Human Rights Act which it deems applicable to the elimination of discrimination against disabled people. The European Convention on Human Rights confers rights on all individuals and the Human Rights Act covers a wide range of issues which go well beyond the scope of the commission's primary duties. It is one of this Government's important policies that British citizens should be able to secure rights guaranteed by the European Convention on Human Rights in British courts and to bring those rights home to all citizens. I can assure noble Lords that we will not be backward in our duty of watching carefully and in the round the impact the Human Rights Act has.
While the Government remain to be convinced of the case for a human rights commission, they have not ruled out establishing one in future. My right honourable friend the Leader of the House of Commons announced in another place before Christmas that a joint parliamentary committee on human rights would be set up with a range of functions relating to human rights. It is envisaged that these will include conducting an inquiry into whether there is a need for a human rights commission to monitor the workings of the Human Rights Act. It may also consider the conduct of inquiries into general human rights issues in the UK. The parliamentary committee will start work later this year. Given the continuing deliberations on the possibility of a human rights commission, we believe it would be wrong to pre-empt the outcome of these deliberations and commit the disability rights commission to a specific duty which may turn out to be inappropriate in the longer term and even, as proposed today, might duplicate the role of a joint parliamentary committee.
Moreover, the Government have recognised that there will be a range of legislation in which the commission may wish to have an interest from time to time, or have a continuing interest, on which it may wish to offer the Government advice. As I made clear in Committee, the Bill has been drafted to give the commission wide-ranging powers to advise the Government on any aspect of the law, or proposed changes to the law, for any purpose connected with the elimination of discrimination and the performance of its other functions. This extends to all legislation applying to England, Scotland and Wales.
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Therefore the commission will be free to make full use of its powers and advise the Government on the Human Rights Act if it considers it relevant to do so. But we also recognise that this will be just one of a number of pieces of legislation about which the commission may choose to give advice. For example, with the inclusion of the non-discrimination provision in Article 13 of the Treaty of Amsterdam it would be surprising if the commission did not take an interest in any directives emanating from this provision; or, for that matter, in a number of older pieces of legislation such as health and safety, or the building regulations, which have a significant impact on disabled people's lives. We do not believe it is right, therefore, to make provision on the face of the Bill for the commission to have a specific duty to keep under review the workings of the Human Rights Act. To do so would place an emphasis on that legislation above all others which may be of equal or more concern to the commission and disabled people.
Lord Renton: My Lords, perhaps the noble Lord will allow me to intervene. I wonder whether he realises that the quite detailed answer he has given does not deal with the points raised so far in favour of the first amendment in the group. Amendment No. 2. The presence in the Bill of a duty to consider the Disability Discrimination Act 1995 singled out means that the commission will not be obliged to consider other statutes unless required to do so. Therefore, even if the Minister does not accept this amendment he must at Third Reading arrange for an amendment to be tabled and for other relevant legislation. It must be done.
4 p.m.
Lord Hunt of Kings Heath: My Lords, I shall reflect on the comments of the noble Lord. However, the provision that allows the commission to advise the Government on legislation will also allow it to advise on all issues relating to the equalisation of opportunities. I refer noble Lords to Clause 2(3)(a) which allows the commission,
"to make proposals or give other advice to any Minister of the Crown as to any aspect of the law or a proposed change to the law".
While I understand the point that the noble Lord raises, from the remarks that I have made it would be very strange if the commission when established did not consider both the Human Rights Act and other legislation that was applicable to the work of the commission.
I turn to the other amendments tabled by my noble friend Lord Ashley. My noble friend is correct to state, as he did at Committee stage, that the Disability Rights Task Force considered the involvement of the commission in relation to providing assistance in cases involving the Human Rights Act. We recognise that, in the absence of a human rights commission or similar body, the DRC may be well placed to provide this assistance. That is why in the White Paper published for consultation last summer we proposed that the commission should have the power to assist individuals under the Human Rights Act in Article 14 cases where

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discrimination prevented them from enjoying the other rights provided for in the European Convention on Human Rights.
The Bill as drafted would allow the DRC some scope to act in assisting disabled people to secure their rights under the Human Rights Act. That Act creates a new form of action specifically based on vindicating convention rights. Under Section 7 of the Human Rights Act individuals can also rely on convention rights in any legal proceedings, not only those brought under the Human Rights Act. Therefore, if a disabled person brings an action under the Disability Discrimination Act which raises breaches of convention rights the commission can assist by virtue of Clause 6(1)(a). Furthermore, we have included a regulation-making power in the Bill allowing the Secretary of State to extend the range of legal proceedings in which the commission can assist individuals beyond those that can arise in the context of Part II or Part III of the Disability Discrimination Act. I reassure noble Lords of our firm commitment to consider the inclusion in these regulations of Section 7 of the Human Rights Act. This commitment is clearly set out in the Explanatory Notes that accompany the Bill and were published with it. However, we strongly believe that a regulation-making power in the Bill is the right way forward. As I said at committee stage, the relevant provisions of the Human Rights Act are not expected to come into force before the year 2000.
Earl Russell: My Lords, since the Minister has given the answer that the noble Lord, Lord Ashley of Stoke, foresaw, can he give the further assurance for which I asked; namely, that the Government accept the decision of 20th October 1994: that this House holds itself free to vote on subordinate legislation?
Lord Hunt of Kings Heath: My Lords, I understand that it is the convention not to do so.
My noble friend Lord Ashley was right to say in Committee that this matter was complex and difficult. There is a good deal about the workings of the Human Rights Act that we do not yet know. Giving the commission wider powers in this area would necessitate it becoming involved in a complex range of issues across the whole spectrum of convention rights against the background of the forging of a new relationship between the courts, the legislature and the Executive made necessary by the constitutional changes under the Human Rights Act. The Government are not deterred by these complexities. On the contrary, we are committed to considering extending the commission's powers in this area and the regulation-making powers that we have included in the Bill will enable us to do so at the appropriate time; that is, after detailed consideration of the meaning and implications of such a course, consultation where appropriate and in the light of any developments that may result from the work of the Joint Parliamentary Committee.
I began my remarks on these amendments by welcoming the opportunity to clarify the Government's intentions as to the role of the commission in reviewing
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the Human Rights Act and assisting disabled people to enforce their rights under that Act. I hope that I have made clear our determination that the commission should have the necessary powers to tackle discrimination against disabled people effectively. I hope that my noble friend Lord Ashley will trust in the good faith of the Government and withdraw his amendment.
I turn to Amendment No. 16 which appears to seek clarification of the extent of Clause 6 and to explore the relationship between the DDA, the Human Rights Act and the Scotland Act. It may be helpful if I begin by clarifying the extent of the application of Clause 6. Its purpose is to enable the commission to support individuals in litigation in which disability discrimination is an issue. Clause 6(1)(a) gives the commission power on the face of the Bill to provide assistance to individuals in relation to proceedings brought under Sections 8 and 25 of the Disability Discrimination Act. Subsection (1)(b) gives the Secretary of State power to extend by regulations the range of proceedings in relation to which the DRC can provide assistance under this section. We have made clear that we wish to consider including proceedings brought in relation to Section 7 of the Human Rights Act. As I have already explained in the context of other amendments relating to the Human Rights Act, it is not possible to be more precise at this stage about how the provisions of Clause 6 may be used in relation to that Act.
As the noble Lord, Lord Swinfen, pointed out, discrimination issues are reserved to the Westminster Parliament. There are two exceptions which allow the Scottish Parliament to encourage equal opportunities generally, other than by prohibition or regulation, and to impose duties on public bodies with functions relating to devolved matters to ensure that their functions are carried out with due regard to the requirements of equal opportunities law. Those exceptions are not such as to require reference to the Scotland Act in this Bill and in that respect the amendment again appears to be unnecessary.
However, it may be helpful if I clarify one or two issues that lie behind the noble Lord's amendment. The purpose of Clause 6 is to enable the commission to support individuals involved in litigation in which disability discrimination is an issue. It is difficult to set out the limits of such a wide area but it is conceivable that it can be used to support a disabled person litigating in the Scottish courts to challenge the effect of legislation of the Scottish Parliament if that legislation has the effect of limiting the application of his rights under the Disability Discrimination Act. If the noble Lord has in mind the possibility of using the Section 7 form of action under the Human Rights Act to challenge Scottish legislation on the grounds that it is incompatible with the convention, we cannot at present give him any assurance about the precise scope of the Clause 6 power in that situation because we have not yet seen how Section 7 of the 1998 Act is to be implemented. I hope that this explanation clarifies the working and extent of

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Clause 6 in sufficient detail for the noble Lord's purposes and that he will feel able to withdraw the amendment.
Lord Rix: My Lords, before the noble Lord sits down perhaps I may make the following observation. I may be naive but I fail to see why the Minister cannot accept the advice of someone who has been in Parliament for 50 years. I refer to the noble Lord, Lord Renton; and the noble Baroness, Lady Blatch, who served in a senior capacity in the previous government. Their proposal to insert "and other relevant Acts" or similar wording is simple. It sweeps up (not under the carpet) all the problems that I, the noble Lord, Lord Ashley of Stoke, and others have listed. That wording gives absolute coverage. I do not understand why the Minister cannot at least state that the Government will review this matter before Third Reading.
Lord Hunt of Kings Heath: My Lords, if it would help, I agree to reflect on the matter and write to the noble Lord.
Lord Swinfen: My Lords, I was interested in what the Minister said. I must reflect upon it with my advisers. It seems that the commission will need to employ two sets of lawyers, English and Scottish. I am concerned that there will not be enough money. The Minister may be able to tell me whether there will be sufficient funds. I have a feeling that the commission will be extremely short of them.
Lord Hunt of Kings Heath: My Lords, I suspect that we shall debate resources later today. It is firmly our belief that those made available to the commission will be sufficient for its purpose.
Lord Ashley of Stoke: My Lords, I am grateful for the support the amendment has received from both sides of the House. In particular, I appreciate the constructive suggestions of the noble Lord, Lord Renton—I nearly called him my noble friend—and the noble Baroness, Lady Blatch. I hope that they will be taken on board at a proper time by the Minister.
I hope we are not seeing from the Minister a pattern which is set for the day of rejecting all these carefully considered, reasonable amendments. They are put forward in good faith to try to help disabled people. They are not obstructive and they do not demand the earth. I believe that the Government could accept them, but we are hearing negative, negative, negative replies, as we did in Committee.
My noble friend says that the Government will watch carefully. That is fine; we expect that. It should not need saying. However, we also want the commission to be able to watch carefully. My noble friend says that the scope of human rights is very wide: so it is. For that reason, any human rights commission will be unable to make disability a priority. One cannot expect disability to be a priority in such circumstances; it will be a sideline and a tiny proportion of its work. Therefore, the Minister's argument cuts no ice.
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We are to have a skilled commission of men and women, more than half of whom have a disability and tremendous experience. Why cannot they look at the issue instead of a broad human rights commission? That is the case for the amendment. My noble friend mentions duplication. Duplication comes only through incompetence. We are assuming that the disability rights commission will be made up of intelligent people. They will be selected by the Government, so we assume they will be intelligent. Why cannot they avoid duplication and instead co-operate with the other bodies?
There was a tiny shaft of light in my noble friend's reply. He has a difficult job and the issue is complex. I hope that we shall receive more than an answer which is bureaucratic and official. What is needed is a political human understanding of our proposals. Nevertheless, in view of the time pressure and other difficulties, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 3:
page 1, line 20, leave out ("may") and insert ("shall").
The noble Baroness said: My Lords, in Committee I said that I was unhappy with the reply given by the noble Lord, Lord Hunt, and would wish to return on Report to make my case that "may" should be substituted by "shall" and to couple that proposal with Amendment No. 4. I cannot over-emphasise that the important work of the commission will be to operate alongside employers, helping them in practical ways to comply with their obligation under the Disability Discrimination Act.
Most noble Lords will agree that resort to litigation should be avoided wherever possible. It should be the last resort. The success of the Commission will be assessed on the degree of work it undertakes without needing to resort to the courts. For that reason, I support what I believe will be its key activity; namely, to give appropriate emphasis by obliging it on the face of the Bill, as a measure of duty, to encourage good practice. Therefore, I believe that "may" should be substituted by "shall".
In Committee, the noble Lord, Lord Hunt, said:
"The intention of the drafting of Clause 2(2) is to allow the commission flexibility in how it promotes good practice where it thinks it appropriate. I hope that all noble Lords will agree with me that the commission should be free to decide—and indead would be best placed to know—what that is at all times. I fear that placing a duty on the commission to do so may well have the effect of constraining it, rather than giving it flexibility". —[Official Report, 4/2/99; col. 1631.]
I take issue with almost everything in that paragraph. Of course the commission will act where it believes that to be appropriate. It will be its duty to do so. When it thinks appropriate it will move in to advise and help companies which need it. Of course the commission is best placed to know when to act and I back that with my amendment. However, I cannot see the argument that placing a duty to encourage on the commission

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might constrain it. Why should that be the case? If the commission believes it appropriate to,
"encourage good practice regarding the treatment of disabled persons in any field of activity",
it has a duty to do so. My amendment does not constrain the commission. It simply provides that:
"The Commission shall encourage good practice regarding the treatment of disabled persons in any field of activity".
I believe that the Minister would do well to reject the official advice, which is always that "may" should never be substituted by "shall". I can prove testament to arguing like a tiger with officials who delivered that absolutely standard, almost deadpan response to any such suggestion. There are occasions when such a substitution is going over the top and being too pedantic. However, as regards the work of the commission, the activity of encouraging,
"good practice regarding the treatment of disabled persons in any field of activity",
which is aimed at keeping cases out of the courts, is so important and such a key feature of its work that I believe that pressing the Minister to accept "shall" rather than "may" is appropriate.
As regards Amendment No. 4, in Committee I said:
"What I was trying to say is that it should be required and have a duty pressed upon it to advise government agencies as well as government. Why, for example, have a subsection (3)(a) and a subsection (3)(b) if we are not prepared to consider including government agencies? They provide a very large part of public service these days". —[Official Report, 4/2/99; col. 1632.]
In response, the noble Lord argued that the proposed measure was subsumed within the Bill. In summing up on that amendment, the noble Lord, Lord Addington, repeated a request I made to the Minister: please point us to the particular reference in the Bill which subsumes the point made in Amendment No. 4. I have looked carefully since we last met. I have found no reference. There has been such a proliferation of government agencies —they continue to proliferate —that it is most important that the duty laid on the commission to advise government when appropriate should apply to agencies. I beg to move.
Lord Campbell of Croy: My Lords, I support the amendment moved by my noble friend. It seems to me that as the Bill stands, with the word "may", subsection (2) might as well not be in the Bill at all. What is the point of having a commission if it is not there to encourage good practice? We should all take for granted that the commission will do that in any event.
I have been involved in this argument about "may" and "shall" over the past 40 years in both Houses, although I know that that is not as long as my noble friend Lord Renton. But I know that this argument is raised every now and then. But in my opinion there is no point in having subsection (2) at all with the word "may" because it looks as though the commission would never encourage good practice at all unless it were given the ability to do so. Therefore, what my noble friend said should be considered seriously.
Lord Addington: My Lords, I liked these amendments in Committee and I like them now. As the noble Lord,
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Lord Campbell, said, if the commission is not going to take on an active, even an aggressive, role in encouraging good practice, we might as well not be wasting our time now. There is no point unless the commission has a clear duty in taking on those roles in the most active way possible.
As regards Amendment No. 4, government agencies are part of government. As the noble Baroness said, the Government must point us in the right direction. If the Bill is to fulfil the function which we all assumed it would have, those matters must be on the face of it. It is a waste of time to have a situation in which there is no direct commitment because there are always 101 reasons for not doing something. We are trying to make sure that things are done through an agreed procedure to which we can look to ensure that they are happening.
Lord Hughes of Woodside: My Lords, I listened to the noble Lord, Lord Campbell of Croy, who said that he had been engaged in discussions and debates on the use of the words "may" or "shall" for more than 40 years. That reminds me of a Bill in 1970 which was put forward by the then Secretary of State for Scotland, the late Lord Ross of Marnock, then Willie Ross. It was lost because of the general election and reappeared immediately after the election with precisely the same wording except that the names on the face of the Bill were different.
Willie Ross said to me, "We need to take up some time in the House of Commons because there are other important Bills coming forward and we must allow time for them to be prepared". He said to me, "Come to my office and we will prepare amendments to this Bill". In my naivety at the time I said to him, "How can you possibly amend a Bill which you drafted and laid before the House?" He said, "Just take your pen and sit beside me, laddie, and do as you are told". Those noble Lords who remember the late Lord Ross will recall that that is exactly how he would behave. He said, "We shall go through the Bill and every time we see the word 'may', we shall table an amendment, 'delete "may" and insert "shall" and then when we have done that, we go back to the beginning and go through the Bill and every time the word 'shall' appears, we table an amendment, 'delete "shall" and insert "may"'". That was a nice time filler.
I do not suggest for one second that the noble Baroness is engaging in such an exercise. But looking at the Bill, it seems to me that the words "may" and "shall" are interchangeable and except in relation to one part, with which I shall deal in a moment, it would not matter one whit whether the words "may" or "shall" are used entirely throughout the Bill provided that the disability rights commission approaches its work with the aim of being against discrimination.
I would say that the only place where those words are not interchangeable is in Clause 2(5) which states:
"The Commission may make charges for facilities or services made available by it for any purpose".
If we inserted the word "shall" it would mean that every time the commission did something—gave advice or made available facilities—it would have to charge for it. None of us would want that.

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I do not know how the Minister will reply to the amendment but I believe that it does not matter whether "may" or "shall" is used. Therefore, he could accept the amendment since it makes no difference.
I have a little more difficulty with Amendment No. 4. The Bill makes it clear that:
"The Commission may … make proposals or give other advice to any Minister of the Crown as to any aspect of the law or a proposed change to the law",
and further on it goes on to say when other advice may be given or sought.
There is some merit in Amendment No. 4 because we live in a period where a great deal of government work is not carried out directly by the Government, for example, the Department of Trade and Industry and the Department of the Environment, Transport and the Regions. There is a great deal of indirect influence. There are different commissions dealing with the environment and different arrangements in relation to health. I do not wish to transgress on English matters, but I know that in Scotland in the main the health service is delivered not directly by the Secretary of State, except through payments, but by the health boards. As the Health Bill goes through this House, there will be changes to the administration of the health service. The principle will be the same; namely, that those agencies carry out the work on behalf of the Secretary of State for Scotland. I imagine it is the same for England.
Therefore, we should provide that the DCR may be able to make proposals or give other advice to any government agency as to the practical applications of the law. There are some who say that the problem with legislation is that it is too verbose and goes on for pages and pages repeating itself in order to try to cover every possible eventuality. We know that that is not possible. It may well be that my noble friend will say that Amendment No. 4 is encompassed by the words of the Bill in Clause 2(3)(b). But I always err on the safe side. In government parlance that does not mean keeping things out of the Bill. It is always better to put them in and be safer in that way.
Lord Campbell of Croy: My Lords, will the noble Lord give way for a moment? I was fascinated by his recollections of the late Lord Ross of Marnock, for whom he will know I had great admiration. I worked with him a great deal in the other place as well as here, particularly behind the scenes. But his story of going through one of his own Bills when he had gone into opposition and making the changes from "may" to "shall" might have been completed by the noble Lord pointing out that I was the successor, the Secretary of State who came in and had to cope with what was then done. Four years later Lord Ross then succeeded me and I could have had some revenge, but I did not.
Lord Hughes of Woodside: My Lords, I am sure that in his own subtle way the noble Lord did try to get his revenge. It is clear in my mind that neither the late Lord Ross of Marnock when he was Secretary of State ever accepted an amendment from the noble Lord, Lord Campbell of Croy, nor, indeed, vice versa. There is
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always a tendency for Ministers to be locked into refusing opposition amendments, I am sure for very good reasons. I am sure that is not done in a spirit of, "Well, we are the Government and we are not going to make any changes anyway". This Government have a good record for at least listening to discussions and debates. They do not always give way. Oppositions are not always right any more than governments are always right. Oppositions are not always wrong any more than governments. There is some particular merit in Amendment No. 4. If my noble friend is unable to accept the exact wording I hope that he will reflect on the point.
One of the important factors is the way in which the DRC is seen by the public. If the perception and impression is that it is coming forward with restrictions that sets it off to a bad start. One factor which is common to both sides of the House is that everyone wants the Bill to succeed.
4.30 p.m.
Lord Renton: My Lords, the noble Lord, Lord Hughes, tried to convince your Lordships that the words "shall" and "may" mean the same thing. I assure him that it depends on the context. There have been statutes, mainly referring to the obligation of individuals, about which the courts have held that those two words are vague, and they would administer justice according to their interpretation of the particular statute.
But here we clearly have a statute which uses the word "shall" as indicating that the commission shall have a duty. It clearly uses the "may" as indicating that it has a power. We must bear in mind that difference in the context of the Bill.
I support those who have argued very convincingly in favour of Amendment No. 3. Perhaps I may add just one word to Amendment No. 4 and to the arguments that have already been used. Clause 2(3)(a) states that the commission may,
"make proposals or give other advice to any Minister of the Crown".
It is suggested that he should have the power to do roughly the same thing for any government agency. I should have thought that the Government would have welcomed that proposal with open arms for this reason. If the commission saves a Minister or a government from the trouble of getting in touch with a government agency for which they are answerable in Parliament, it might save time and public money within the Civil Service. There is a great deal to be said in favour of Amendment No. 4.
Lord Swinfen: My Lords, the noble Lord, Lord Hughes, referred to his late noble friend Lord Ross of Marnock. The noble Lord will recall that he had a reputation for calling a Division whenever he felt the need for a cigarette. Therefore, it is possible that he may have tabled amendments to give him that opportunity. However, we also know that he was greatly loved on all sides of the House.

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The very first line of Clause 2 states that,
"The Commission shall have the following duties".
It is an instruction to the commission. It should encourage good practice, which is its most important duty. Therefore, I am very strongly in favour of the amendment of my noble friend Lady Blatch to change "may" to "shall". I also believe that her Amendment No. 4 is extremely worthy and should also be included in the Bill.
Lord Rix: My Lords, as the Government are probably minded to reject both these amendments, I would like to remind the House and the Minister of an intervention that I made at Committee stage when I said,
"I should have thought that it was perfectly easy to remove subsection (2) and to make it part of Clause 2(1) as a new paragraph (d). Clause 2 would then read:
"The Commission shall have the following duties—
(d) to encourage good practice regarding the treatment of disabled persons in any field of activity'". —[Official Report, 4/2/99; col. 1630.]
Semantics go completely out of the window. I know that the noble Baroness, Lady Blatch, was fully prepared to accept that as an alternative. It was never responded to directly by the noble Lord, Lord Hunt of Kings Heath. If the Government are minded to reject these amendments and there is no Division, I ask them to consider my suggestion seriously before we come to Third Reading.
Earl Russell: My Lords, before I feel in need of a cigarette may I express my enjoyment of the speech of the noble Lord, Lord Hughes of Woodside, and his description of the exchanges between Lord Ross of Marnock and the noble Lord, Lord Campbell of Croy. It simply serves to confirm the Namierite picture that whatever the political colours of the government of the day, the Court and Treasury Party is always in office and the Country Party is always in opposition. But to say that the Court and Treasury Party is always powerful is not to say that it is always right.
I cannot match the noble Lord, Lord Campbell of Croy, as regards the length of time that I have been involved with this, but looking at these proposals I am where I came in on the Education Act 1988. I have seen more Bills setting up commissions since then than I would like to imagine. In that period I have also seen a steady change in the style of official draftsmanship in order to make commissions, Secretaries of State and other government agencies less subject to control.
I understand that. It is the problem of poachers and gamekeepers. The poachers always want to weaken the powers of the gamekeepers and so they naturally should. But this is a contest in which there ought always to be two sides. This steady growth in the permissive drafting of legislation so that it is harder to challenge the use of power quite severely diminishes accountability.
Clause 2(2) states,
"The Commission may encourage good practice regarding the treatment of disabled persons".
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That means that if the commission never once in all its existence does anything which improves the treatment of disabled persons, it is not accountable; it has not failed in any duty.
I am sure that that is not the Government's intention, but it means that it is their intention that the commission should not be accountable should it fail in that duty. I perfectly understand that from the official point of view. The Civil Service is a profession in which one may receive blame but not praise. I entirely understand that that is a difficult situation to cope with and I have sympathy for it. But this degree of unaccountability is unwise. It encourages unaccountable, and therefore potentially arbitrary, power. It should therefore be viewed with misgiving.
Amendment No. 4 is very close to one of the very first amendments to which I had the privilege to speak in Committee. It said that the Universities Funding Council, as it then was, could only offer advice to the Secretary of State when he asked for it. Incidentally, I heard what the noble Baroness, Lady Blatch, said about the arguments with her officials. I was most grateful for that. Of course, I was unable to know that at the time, but I am very glad indeed to hear it now.
When the Secretary of State wants advice it is almost always going to be when he least needs it. That has been a topos of political theory for centuries. The king who most needs advice is the king who does not know that he needs it.
We have managed to move on just a little from that situation. It seems to me that the proposal in Amendment No. 4 is a very practical one. Let us suppose, for example, that the commission believes that the Higher Education Funding Council for England is in need of advice on something which has relevance to disabled persons, as may well be the case at any time. As things stand now, that would go right up to the Minister's desk. The Minister would have to send it down again and there would be an immense circulation of paper in a great variety of directions.
I do not believe that Ministers of the Crown are particularly short of work. Would it not be a good idea if the disability rights commission and the Higher Education Funding Council for England were able to have a quiet word together—I shall not say at leisure, because even they are busy people—with slightly less haste than is the case at the centre of government? They could then jointly report to the Secretary of State that they had reached an agreement and ask whether he would consider joining in their agreement. That would save government a great deal of work. Any proposal that allows Ministers to have more sleep at night tends towards good government.
Lord Hunt of Kings Heath: My Lords, we have had an interesting debate. I am relatively new to the arguments concerning "shall" and "may". I recognise that the two words cause a great deal of interest in your Lordships' House. I could not agree more with the noble Lord, Lord Renton, who pointed out that "shall" and "may" can mean different things at different times and in different places.

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Before I turn to what may be described as the technical arguments, I emphasise that there can be no question but that the commission will want to encourage good practice. I do not think that it is discretionary in the sense that noble Lords have implied. Nor is there an issue of abandoning the encouragement of good practice to focus on a legalistic approach.
Noble Lords may find it helpful if I explain that Clause 2(1) sets out the commission's overarching duties. Two of these are to work towards the elimination of discrimination against disabled people and to promote the equalisation of opportunities for disabled people. In pursuing those duties we fully expect, and believe it will be necessary for, the commission to encourage good practice. Indeed, this is how much of what we all want the commission to do might be achieved. Encouraging good practice must be an integral part of the application of these duties. For example, the commission could pass on, perhaps through a representative body, to all large retail companies of a certain type elements of good practice developed and tested in a particular retail company and found to offer disabled people the same quality of service as others. That clearly seems to fall within the ambit of equalising opportunities. But there are perhaps very few examples of what we commonly call good practice which, to a pedantic eye, might not appear to fall within the scope of the main duties under Clause 2(1); one might take the view that certain aspects of disability etiquette training do not. Clause 2(2) therefore seeks to make clear beyond any doubt that the commission is free to encourage good practice.
However, there are dangers in making that a duty rather than a power. It would not be wise, for example, to place a duty on the commission to encourage good practice in a situation where no accepted good practice exists at all. To do so could open it up to challenge. Challenge might also come where the commission offers novel advice to overcome particular difficulties or where a judgment has to be made about which practices—
Baroness Blatch: My Lords, will the noble Lord elaborate on the point he makes that if the commission wished to encourage good practice where none existed, it would somehow be in breach of its duties under the Act, as it will then be? That is very strange indeed. If there were a place of employment where no good practice existed, surely the commission would have a duty to encourage good practice there.
Lord Hunt of Kings Heath: My Lords, the commission is a new body. Inevitably, when it starts work it may call on a limited body of good practice. It will be treading new ground. It will not always be able to draw on good practice in giving advice in specific situations. By making the encouragement of good practice a duty rather than a power, one may invite challenge and potential judicial review. What is good practice now may not be good practice in a few years' time.
Earl Russell: My Lords, the Minister admits that it is an argument about accountability. On his response to
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the question of the noble Baroness, Lady Blatch, does he agree that where good practice does not exist the commission should be responsible for inventing it?
4.45 p.m.
Lord Hunt of Kings Heath: My Lords, where it is difficult to identify good practice, the commission will clearly have a role, when asked for advice in a new area, to draw on whatever experience there is to help.
The issue of accountability was raised by both the noble Earl and the noble Baroness. Clearly, the commission will be accountable for the good practice that it encourages. It will need to make clear to the Department for Education and Employment, year on year, how it uses its resources in terms of promotional work and other functions. It will also be accountable in its annual report to the public, to this House and to another place, year on year. In that report it will need to make clear how it has used its resources and how it has sought to promote good practice.
I believe that promoting good practice will be an important part of the duties of the commission. However, placing a separate duty on the commission would not, I believe, achieve anything positive for the reasons I have given. I hope that the noble Baroness will agree to withdraw her amendment.
Amendment No. 4, also tabled by the noble Baroness, Lady Blatch, seeks to make specific provision on the face of the Bill for the commission to make proposals or provide advice to a government agency. I indicated in Committee that the commission would have the power to do that under wider provisions in Clause 2. I refer specifically to subsection (3)(b) dealing with the commission's ability to provide advice and information. The amendment is, therefore, unnecessary.
However, I am happy to place on record that the commission may provide advice to government agencies—for example, the Health and Safety Executive—on the practical application of the law when doing so meets its more general duties of working towards the elimination of discrimination and equalising opportunities. Alternatively, government agencies would be free to seek advice and information from the commission which the commission would be able to grant.
However, I see little merit in making special provision for government agencies on the face of the Bill above others who may benefit or indeed may need the commission's advice. Should we also make a similar provision for local authorities and the host of other organisations who make a judgment about what the law requires and apply it?
The noble Baroness, Lady Blatch, suggested in Committee that what she wanted to achieve was a duty rather than a power. I do not believe that it is right that we impose a duty on the commission in this respect. In placing a duty on the commission, it would be deciding the areas of interest and priority for it. While government agencies may not be perfect, I believe there are many other organisations which may be in as much,

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if not more, need of the commission's advice. I am confident that the commission will use its powers wisely when making decisions about whom to advise.
There is a further point. There are a number of organisations in existence which already offer advice to government agencies about disability matters; for example, the Advisory Committee for Disabled People in Employment and Training (ACDET) which provides a great deal of advice to the Employment Service. Placing a duty on the commission in the way that the noble Baroness describes may result in duplication of effort. Of course, the commission should work with such organisations, but placing a duty on the commission in this respect will not help flexible, co-operative arrangements.
I believe that the Bill already addresses the concerns of the noble Baroness, Lady Blatch. I therefore hope that she will agree to withdraw her amendment.
Baroness Blatch: My Lords, I am bemused by the reply given to both amendments. In response to my intervention about offering employers encouragement in good practice, the noble Lord said that the body may be too new and that in its early stages it will have only a limited body of good practice on which to call. We are not legislating for the first two or three months of the commission but for its life—that is, until another Parliament at some time in the future considers a review of the statute. I find that answer wholly unacceptable.
The noble Lord went on to say that the commission will be accountable for the good practice that it encourages. I say toucheé to that. It should certainly be accountable for the good practice that it encourages, but we are concerned about the times when it does not encourage good practice where we believe that the encouragement of good practice is necessary.
If I may say so, I do not think that the Minister picked up the point being made when he referred to the commission not having a role where a company was not practising as it ought or meeting its obligations under the law. The Minister suggested that if the commission went into a company which did not have good practice, it would have no responsibility to encourage good practice. I find that strange.
The Minister accused me of trying to impose upon the commission a separate duty. I am trying to impose upon the commission a coherent duty and to say that it has a duty to encourage good practice. Where good practice exists, the commission should have a duty to improve such good practice and, where good practice does not exist, it should have a duty to encourage such good practice.
The Minister also said that this is not a discretionary power. If it is not discretionary, let us make it mandatory—and we can do that by accepting the amendment which seeks to substitute "shall" for "may".
Perhaps I may advise the noble Lord, Lord Hughes of Woodside, that I have just realised how much time
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I spent in government answering those who were seeking to do just as I am now. The noble Lord, Lord McIntosh of Haringey, comes to mind because I do not think that from those Benches I took a single Bill through the House when the noble Lord did not make a fair feast about substituting "shall" for "may"! Perhaps I may make a serious point on that. I referred in passing in Committee to the way in which in those days I would return to my department and fight the corner. I did not always do that because I often thought that the argument about substituting "shall" for "may" was pedantic and irrelevant. However, there are occasions when providing for a duty as opposed to a permissive power is appropriate. I think that the case has been well made in this instance. This is an appropriate occasion for the use of the word "shall" rather than "may".
I turn now to Amendment No. 4. My noble friend Lord Renton referred to the possibility of saving time and money if the provisions work well. A third positive reason for accepting the amendment is that when the body has a statutory duty to meet, it must meet it under the law. Very often, if resources are tight and a government agency needs advice and a body such as the commission cannot meet the permissive power, it is very easy for it to say, "We simply don't have the money; nor do we have a statutory duty". Where the commission is conscious that good practice does not exist and where it believes that it would be positively helpful to prevent a case going to court—that would be a jolly sight more expensive for the public purse—I believe that the commission should have a duty to advise.
The noble Lord said that he was happy to put on the record that the right would be subsumed and that the commission would be able to advise agencies as well as government. If the noble Lord is happy to place that on the record, he should be even happier to put it on the face of the Bill. I say that because I do not believe that it is good enough simply to put it on the record. When we last spoke about this, the noble Lord said that this provision is on the face of the Bill. He said that it was subsumed. I asked for the reference, as did the noble Lord, Lord Addington, and the Minister was unable to give it to us. He has not given it to us today. The other agencies are an arm of government. The clause states that they may advise the Government. I do not believe that my amendment precludes local authorities and other agencies. As I understand it, they are already subsumed in that there is a permissive power for them to advise any organisation that they believe it appropriate to advise. I am talking about agencies that deliver government business—that is, about government agencies. Unless I can be told exactly and precisely where that provision comes in the Bill, I believe that we should test the opinion of the House on this matter.
Lord Hunt of Kings Heath: My Lords, I thought that I had referred specifically to subsection (3)(b)—I apologise if I did not—which refers to the commission's ability to provide information and advice.

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It is under that provision that the commission has the ability, which it will undoubtedly use, to advise a government agency.
Baroness Blatch: My Lords, I cannot see the connection between that subsection and government agencies. Can the noble Lord explain to me what I am missing in that provision?
Lord Hunt of Kings Heath: My Lords, the noble Baroness put her finger on it earlier when she referred to the ability of the commission to give advice to local authorities under that general power. My point is that, just as under that subsection the commission can give advice to local authorities, so it can give advice to government agencies.
Baroness Blatch: My Lords, that does not meet my point. Subsection (3)(b) states:
"undertake, or arrange for or support (whether financially or otherwise) the carrying out of research or the provision of advice or information".
I am referring to the commission advising the Government and making it clear beyond peradventure, on the face of the Bill, that the phrase "the Government" includes government agencies—that is, those bodies, of which there are many, which provide government services. That should be made explicit on the face of the Bill.
Lord Hunt of Kings Heath: My Lords, I do not think that I can say anything more. The ability of the commission to offer advice to government agencies and the other institutions which the noble Baroness mentioned is contained in that subsection.
Baroness Blatch: My Lords, with the leave of the House, I rise to make my last point. It is a key point. We are not talking about a permissive power. We know that the commission will offer and proffer advice to many bodies. If it has a duty in law to advise the Government, we want to make it statutory that that duty should be extended to advising government agencies also.
In the light of what the Minister said about substituting "shall" for "may"—that is the point of my first amendment—I shall seek to withdraw Amendment No. 3 in the hope that—not on the grounds that, but in the hope that—the Minister will give serious thought not only to what I have said but also to what the noble Lord, Lord Rix, said because, as he did in Committee, the noble Lord has offered us today a very workable alternative, which I believe needs consideration between now and the next stage. I beg leave to withdraw Amendment No. 3.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 4:
Page 1, line 25, at end insert—
("( ) make proposals or give other advice to any Government agency as to the practical application of any law;").
The noble Baroness said: My Lords, I beg to move.
4.58 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 112; Not-Contents, 81.

Division No. 1

CONTENTS

Addington, L.

Long, V.

Alderdice, L.

Lucas of Chilworth, L.

Annaly, L.

Lyell, L.

Astor of Hever, L.

McNair, L.

Avebury, L.

McNally, L.

Bath, M.

Manton, L.

Beaumont of Whitley, L.

Mar and Kellie, E.

Blatch, B.

Marlesford, L.

Brentford, V.

Merrivale, L.

Bridgeman, V.

Methuen, L.

Broadbridge, L.

Miller of Chilthome Domer, B.

Brougham and Vaux, L.

Molyneaux of Killead, L.

Burnnam, L. [Teller.]

Morris, L.

Byford, B.

Moyne, L.

Cadman, L.

Newby, L.

Campbell of Croy, L.

Nunburnholme, L.

Carlisle, E.

O'Cathain, B.

Charteris of Amisfield, L.

Ogmore, L.

Clanwilliam, E.

Park of Monmouth, B

Clement-Jones, L.

Pender, L.

Cope of Berkeley, L.

Perry of Walton, L.

Cowdrey of Tonbridge, L.

Perth, E.

Craigavon, V.

Phillips of Sudbury, L.

Dahrendorf, L.

Rankeillour, L.

Darcy de Knayth, B.

Rawlings, B.

Davidson, V.

Razzall, L.

Denham, L.

Redesdale, L.

Dholakia, L.

Rees, L.

Downshire, M.

Rennell, L.

Elton, L.

Ronton, L.

Ezra, L.

Rix, L.

Falkland, V.

Rodgers of Quarry Bank, L.

Fraser of Carmyllie, L.

Russell, E.

Glanusk, L.

Seccombe, B. [Teller.]

Glenarthur, L.

Sharp of Guildford, B.

Glentoran, L.

Skelmersdale, L.

Goodhart, L.

Steel of Aikwood, L.

Grey, E.

Strafford, E.

Harding of Petherton, L.

Sudeley, L.

Harris of Greenwich, L.

Swinfen, L.

Harrowby, E.

Tebbit, L.

Higgins, L.

Teviot, L.

Holderness, L.

Thomas of Gresford, L.

Hooper, B.

Thomas of Walliswood, B.

Hooson, L.

Thomson of Monifieth, L.

Howe, E.

Thurlow, L.

Inglewood, L.

Thurso, V.

Jacobs, L.

Tordoff, L.

Kimball, L.

Vivian, L.

Kirkwood, L.

Wallace of Saltaire, L.

Knollys, V.

Wigoder, L.

Lane of Horsell, L.

Williams of Crosby, B.

Lawrence, L.

Winchilsea and Nottingham, E.

Layton, L.

Wise, L.

Leigh, L.

Wynford, L.

Lester of Heme HilL L.

Young, B.

NOT-CONTENTS

Acton, L.

Archer of Sandwell, L.

Ahmed, L.

Bach, L.

Allenby of Megiddo, V.

Bassam of Brighton, L.

Alli, L.

Berkeley, L.

Amos, B.

Blackstone, B.

379

Borrie, L.

Jeger, B.

Brookman, L.

Jenkins of Putney, L.

Burlison, L.

Kennet, L.

Carter, L. [Teller.]

Kirkhill, L.

Christopher, L.

Lockwood, B.

Clarke of Hampstead, L.

Longford, E.

Cocks of Hartcliffe, L.

Lovell-Davis, L.

Crawley, B.

McIntosh of Haringey, L. [Teller.]

David, B.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.

Molloy, L.

Dean of Thornton-le-Fylde, B.

Monkswel, L.

Desai, L.

Montague of Oxford, L.

Donoughue, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Murry of Epping Forest, L.

Dubs, L.

Nicol, B.

Evans of Watford, L.

Peston, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Gladwin of Clee, L.

Ponsonby of Shulbrede, L.

Goudie, B.

Prys-Davies L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Rogers of Riverside, L.

Grenfell. L.

Scotland of Asthal, B.

Hacking, L.

Shepherd, L.

Hardie, L.

Simon, V.

HaymanB.

Simon of Highbury, L.

Hilton of Eggardon, B.

Smith of Gilmorehill. B.

Hollis of Hetgham, B.

Strabolgi, L.

Howie of Troon, L.

Symons of vernham Dean, B.

Hoyle, L

Thornton, B.

Hughes, L.

Turner of Camden, B.

Hughes of Woodside, L.

Uddin, B

Hunt of Kings Heath, L.

Walker of Doncaster. L.

Irvine of Lairg, L. [Lord Chancellor.]

Whitty, L.

Williams of Elvel, L.

Jay of Paddington, B. [Lord Privy Seal.]

Williams of Mostyn, L.

Winston, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
5.7 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 5:
Page 2, line 7, at end insert—
("( ) The Commission shall have the power to initiate proceedings in its own name or to apply to intervene in proceedings if it believes that an unlawful act has occurred or is about to occur under the 1995 Act. ").
The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 13, 21 and 22.
The concern of disabled people and disability organisations, and I am sure the Government, is that the long-awaited disability rights commission should be a really effective body. Disability has trailed behind gender and race in getting anti-discrimination legislation and a commission. One advantage is that the new commission can benefit from the lessons the other two have learnt along the road.
These four amendments are crucial to the Bill and I may take a little longer than usual in explaining them. Experience has shown that the right to initiate proceedings is a power that can overcome present inadequacies and greatly enhance effectiveness. That is the objective of this amendment. I am sure that your Lordships will have noted that to exercise the power for the commission to initiate proceedings, permission from a court or tribunal is required. That is an extremely important safeguard. The commission would have to
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satisfy the court or tribunal that it is in the interests of justice for the commission to take the proceedings and that the consent of the victim has been given. That is another important caveat.
My noble friend the Minister said in Committee, understandably, that these amendments could not work legally because the commission itself was not a disabled person, could not be discriminated against as such, and hence could not initiate proceedings. She was right to make that objection and, thanks to the superb Public Bill Office, we have changed the wording so that the amendment now legitimately will say that the commission may bring a complaint on behalf of the complainant. In light of that change to accommodate my noble friend, I hope she will now be able to agree to this important amendment. It refers to three situations where it may be appropriate for the commission rather than the individual to act.
The first is the nature of the claim. Where a class of disabled people is affected by a discriminatory act it would be efficient and cost effective for one action to be taken. In addition, in cases such as harassment, it could well be preferable for the commission and not the victim to lead in court. Secondly, some people with learning difficulties or mental health problems may benefit from having a third party taking the lead so as to ensure that there is full and proper communication. Thirdly, some disabled people could find the legal process excessively daunting and stressful. Most of us would find court procedures stressful, but for some severely disabled people the stress could be excessive and exacerbate their condition. In other countries discrimination proceedings have special provisions such as private hearings, more informal hearings and specially trained staff and adjudication. It is widely recognised that special provision of some kind can be required in some cases.
The second part of the amendment gives the commission the power to bring an injunction to prevent an unlawful act. "Prevention" is the operative word. The DDA imposes some, albeit rather limited, obligations on service providers and these will be in force by 2004. In Committee, the Minister stressed the many advantages of the judicial review procedure and pointed out that the commission could make use of it. The problem now is that judicial review is possible only for public bodies, not private ones. It also has its limitations which cast doubt on how effectively it could meet disability discrimination concerns. This part of the amendment gives the commission the necessary power to act quickly and simply if the obligations of the 1995 Act on service providers were being ignored. I hope that my noble friend the Minister will carefully consider the amendment. She will know how strongly noble Lords and disability organisations feel on these issues. The particular needs of disabled people in their search for access to justice should be recognised. That is the objective of the amendment.
Amendment No. 13 seeks to give the commission the express power to take part in proceedings between two parties. I appreciate that my noble friend said that the commission will have the power to intervene. We accept that from the Minister but we need the assurance in the

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legislation both for the removal of any doubt and also to facilitate the practice. At present it is almost unknown in English courts. That is of paramount consideration.
I am grateful to Michael Rubinstein, co-editor of the Equal Opportunities Review and editor of Industrial Relations Law Report, for advice on what I say next. Employment appeals tribunals are heavily dependent on the arguments and points put to them by the advocates appearing in court. This is even more so with the Court of Appeal and the House of Lords. The history of discrimination law is littered with appellate cases in which the applicants were unrepresented or badly represented.
The commission may decide that a particular appeal raises an important or possibly vital point of law but that the complaint is of little merit on its facts and therefore does not support the applicant. The commission under those circumstances should be able to put forward its view on how the statute should be construed.
The commission may be unable to fund the case because of budgetary constraints. In the High Court, the Court of Appeal and the House of Lords, the losing party is liable for the successful party's costs. The costs of intervening in a case to make a submission are minimal by comparison. An applicant may be pursuing a very important case without reference to the commission, say, because they are self-represented or have financial support. This means that the commission can only watch from the sidelines, even where the issues to be considered are of immense potential importance.
There is nothing in the law to stop statutory commissions asking the court to be a party to the proceedings or to be permitted to submit an amicus brief. I am sure that my noble friend will point that out. The reality is that this has hardly ever happened, so there is absolutely no point in that theoretical justification. What is needed now is an express statutory power for the relevant commission to make submissions to a tribunal or court where it considers that it is in accordance with its statutory objects and is in the public interest to do so. I believe that this should be an important part of the commission's strategic legal role.
My final point is that commissions are the legal guardians of their legislation. They have unique expertise to which deference should be accorded by the courts. They should be given the power to protect the interpretation of the law. Amending the Disability Rights Commission Bill to give the commission this power would be exactly the right way to begin. I beg to move.
5.15 p.m.
Lord Campbell of Croy: My Lords, I am not sure whether three other amendments in the grouping are being taken with this one, but I support what the noble Lord, Lord Ashley, has said in general. I shall be interested to hear what objections the Minister may have to carrying out the purpose of the amendment that has been proposed. It seems to me that there are likely to be cases where time, trouble and expense could be reduced or avoided for all concerned if it were possible for the
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commission to have the power to act in this way. I realise that there may be problems and difficulties and I shall be interested to hear the Government's response.
I do not think the noble Lord, Lord Ashley, mentioned it but I understand that the amendment would enable the commission to outlaw advertisements which discriminated against disabled people. If so, that is another point which makes the amendment very acceptable.
Lord Morris of Manchester: My Lords, in rising to support these amendments, I want first briefly to endorse the warm tribute paid by my noble friend Lord Ashley to Agnes Fletcher and others in the voluntary sector who have done so much to help noble Lords in all parts of the House in seeking to improve this important Bill.
In relation specifically to Amendment No. 21, the ability to step in and take on a case on behalf of a disabled person seems to me to be a useful additional power for the commission to have. It differs slightly from the powers provided in Clause 6 which I understand apply only to cases raising questions of principle. In its response to the consultation on the functions of the disability rights commission, the Association of Disabled Professionals firmly asserted:
"We are of the opinion that the Commission should have the power to assist any individual. We would therefore be particularly unhappy if the word 'special' was used and given too limited a meaning in the legislation".
Unfortunately, the existing Clause 6 does just that.
The proposed new clause would sensibly allow the commission to apply to the court or tribunal for leave to initiate proceedings whenever it considered it would be in the interests of justice to help individual disabled people, regardless of whether a case raised a question of principle. A person with a mental health problem, for example, might well be adversely affected if she or he were to pursue a particular case. This amendment would allow the commission to get permission to pursue the case in the interests both of the individual and of others in similar circumstances. This seems to me to be an unexceptionable but very useful increase in the powers of the commission.
The second part of the proposed new clause calls for powers which both the Commission for Racial Equality and the Equal Opportunities Commission have asked for in their review in the light of their long experience. I was grateful to my noble friend the Minister of State for correcting her reply to me on this point in Committee and for confirming my statement that both the Commission on Racial Equality and the Equal Opportunities Commission had indeed asked for such powers.
In Committee, my noble friend the Minister of State explained at length and with great care how the wording of the original amendment was defective. I hope that the current wording avoids the difficulties that she cited. The use of such a power to initiate proceedings in its own name could be especially valuable in the early days of the Disability Discrimination Act when knowledge of its scope, the reasons for it and how discrimination can

383
be avoided is comparatively rare among the public at large. In my opinion some swift, inexpensive mechanism to prevent wrongdoing—before costs are incurred and before anyone has been hurt—would greatly enhance the ability of the commission to fulfil its responsibilities.
Lord Addington: My Lords, this series of amendments addresses something which has been seen as a very serious flaw in the process now before us—namely, that the commission would be able to take on legal proceedings on behalf of a person. When we talk about the disabled, it is easy to forget that we are considering a wide group of people. The right to bring an action is all very well if you happen to be a graduate sitting in a wheelchair. Of course, it will still be incredibly stressful and difficult but there is no reason why you should not be successful if your case is good and your lawyers are competent.
However, if you happen to have, for example, a learning disability coupled with something like stress-related asthma, going through the detailed proceedings of a court case as regards a situation where you were directly discriminated against would probably be one of the most stressful experiences imaginable. Indeed, that, plus the extra stress placed upon someone who has basically an intellectual impairment, is asking the almost impossible of such a person.
The proposals now before us would actually address a flaw in the current system. It would mean you would be able to give the commission certain powers, and that would address a flaw in the legislation. You would be able to ensure that a whole range of disabilities would be covered. The Government should accept this proposal, or something very like it. If they do so, they will have achieved that wide-ranging cover.
In the previous debate we had a great, so to speak, personal CV of reminiscence. Mine is not quite as long as that of some of the other speakers, but I have still been an active Member of this House for slightly over 10 years. This is one of the few Bills where there has genuinely been a will to improve the legislation across the House. When the Government respond, they should bear that fact in mind. These amendments have not been brought forward as a wrecking mechanism or in order to score petty political points. If the Government had made it possible for me not to move or support any of the amendments to the Bill, I should have been very happy. Bearing that in mind, I hope that the Government will accept these amendments.
Baroness Darcy de Knayth: My Lords, as I have attached my name to these amendments, perhaps I may speak briefly to them. I believe them to be tremendously important. When he introduced the amendments, the noble Lord, Lord Ashley, spoke about increasing the effectiveness of the commission. Much of this is about effectiveness. If it is effective we shall have less legislation, and we shall achieve that by banishing ignorance, promoting understanding and, to a certain extent, increasing the confidence in the people who are likely to be brought to court.
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When speaking to Amendment No. 13, the noble Lord, Lord Ashley, mentioned Michael Rubinstein who said that the history of discrimination law is littered with cases where the applicant was unrepresented or badly represented. I think that Amendment No. 13 would go a long way towards improving this legislation. Indeed, such provision is very important with a relatively new law. Moreover, if it takes the view on the correct interpretation of the issue of law, the commission might wish to intervene on the side of the employer or the service provider accused of discrimination if it felt that the latter had a point. I believe that that would give great reassurance to those who are service providers.
The noble Lord, Lord Morris, and the noble Lord, Lord Ashley, spoke a great deal about Amendment No. 21, so I have nothing to add. However, Amendment No. 22, which deals with the power to seek an injunction, is extremely important. It would give the commission the power, which the other commissions have, to deal with unintentional and institutional discrimination. That is particularly important in the field of disability where there is not yet very much understanding. Indeed, there is much ignorance about dealing with disabled people. I support these amendments most strongly. I hope that the Minister will respond positively.
Lord Renton: My Lords, if I may say so, a strong case has been made for Amendment No. 7 and it has been well supported. However, like the noble Baroness, Lady Darcy de Knayth, I should like to say a few words about the amendments which are grouped with it. Amendment No. 13 gives the right to intervene in proceedings started by someone else. I believe that the commission should have power to do so. The issue could well relate to the very problems with which the commission is involved and with which it is charged to deal by statute.
Amendment No. 21 is important from the following point of view. Some disabled people, especially those who are mentally disabled, simply could not bring proceedings to protect their own rights; indeed, they might not even have the consciousness to do so. Nevertheless, those proceedings should be brought so that they can be protected. Amendment No. 21 would give the commission power to bring proceedings on behalf of a "complainant or claimant". We must be careful of the words here because a severely handicapped person might not even have the power to claim, but there must be an opportunity for proceedings to be brought on that person's behalf.
I do not believe that Amendment No. 22 is so necessary. I shall explain why. If power is already given in the Bill to bring proceedings, that includes power to seek an injunction. Therefore, in my view—I may be wrong; indeed, the Government might even disagree with me—I do not think that we shall need Amendment No. 22 if the other amendments are accepted.
5.30 p.m.
Lord Rix: My Lords, I am most grateful to the noble Lords, Lord Addington and Lord Renton, for specifically mentioning people with a learning

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disability. Obviously these amendments are of vital importance to such people. I add my support to the amendments, particularly in regard to people with a learning disability.
Baroness Blatch: My Lords, I have two specific questions for the Minister. First, why is it that the Equal Opportunities Commission and the Commission for Racial Equality are funded at a higher level than is proposed for the body we are discussing? Secondly, why is it that the Equal Opportunities Commission and the Commission for Racial Equality appear on the face of it to have greater powers than is proposed for the body we are discussing?
Lord Swinfen: My Lords, I, too, support this group of amendments. The answers to the questions just posed by my noble friend are extremely important. I do not understand why the Equal Opportunities Commission and the Commission for Racial Equality have the powers that the noble Lord, Lord Ashley of Stoke, is now seeking for the disability rights commission and why the Government have not put that into the Bill of their own accord.
Lord Renton: My Lords, before the Minister replies, I hope I may correct a slip of the tongue. I said that I supported Amendment No. 7; I should have said Amendment No. 5. For the sake of the record I wish to put that right.
Baroness Blackstone: My Lords, I am grateful to the noble Lord, Lord Renton, for putting that right. I was aware that he meant to refer to Amendment No. 5.
Amendment No. 5, tabled by my noble friend Lord Ashley and the noble Lords, Lord Addington and Lord Swinfen, and the noble Baroness, Lady Darcy de Knayth, and Amendments Nos. 13, 21 and 22 tabled also by my noble friend and the noble Baroness concern the power of the commission to initiate or intervene in proceedings. In considering the substance of this group of amendments, I would like to make clear at the outset that I do not wish to dismiss what I believe noble Lords want to achieve through these amendments. I can assure noble Lords that I recognise the strength of feeling on this matter. However, I believe much could be achieved by the procedures which already exist and which this Bill would allow. I hope that Members of your Lordships' House will not accuse me of not responding positively. I want to respond positively wherever I can, but there are of course important legal issues involved here, as I am sure many of those who have already spoken will understand. I hope noble Lords will forgive me if I take a little while in dealing with this group of amendments and in covering some of the legal issues.
I shall deal first with Amendment No. 21, which will in part deal with Amendment No. 5. This concerns the matter of the commission initiating proceedings in its own name on behalf of individuals. I wish to deal straight away with the issue raised by my noble friend Lord Morris, the noble Lord, Lord Renton—I think the noble Lord, Lord Rix, also picked up on this—and the noble Lord, Lord Addington, concerning people who
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have a mental disability, particularly of a severe kind. As I understand it, if an individual is suffering sufficiently from a mental disability, he may in law have someone else look after his legal interest and protect his legal interest. I hope that covers that particular point. Before I deal head on—
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. My noble friend Lord Renton made the point that the person concerned may not be sufficiently conscious or aware that he or she needs legal redress on a particular matter, and may not even be able to advise a friend to seek this on his or her behalf. The commission may be aware of the problem, but not a friend. How can a person in such circumstances be not just expected, but relied upon, to enlist his or her own help through a third party?
Baroness Blackstone: My Lords, I do not think that anything I said suggested that the person himself had to elicit the help of a third party. That could be done by a relative, a friend, or by someone who is responsible for the care of the person. I hope I may continue. This is Report stage and perhaps some of these issues will become a little clearer.
Before I deal head on with the substance of the amendment it may be helpful if I make clear just how much could be done by the commission to assist disabled people through the powers which the Bill already provides. The existence of the commission would itself offer disabled people much more than they have at present. I am sure everyone who has taken part in these debates will accept that. The commission would have the ability to advise individuals about their rights, or even to approach an employer or service provider on behalf of an individual. It might even make such an approach, where it felt it was appropriate or necessary to do so, by a means which did not disclose the identity of the individual.
The commission will have an important role in reducing the cost of litigation for some disabled people—I believe that point was raised by the noble Lord, Lord Campbell of Croy—in financial terms, in removing some of the anxiety associated with litigation, and in addressing the needs of those less able, or perhaps unable, to take cases themselves. Where it chooses to assist an individual, the commission would—by virtue of Clause 6(2)—consider cases which raise issues of principle. The result of any such case might well affect a number of disabled people, and could remove any need for them to face the onerous task of personally seeking redress through the courts or tribunals. The commission would also have to apply criteria for assisting individuals, where it is unreasonable to expect them to take the case unaided.
Where assisting an individual raises issues of principle or where the individual could not be expected to take the case unaided, the commission could provide representation. Indeed there is nothing to prevent the commission providing a high degree of support in litigation, so long as there remains a specific individual who has been discriminated against. I believe the

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commission's ability to act in these ways goes a good way to meet the concerns raised as regards litigation in courts or tribunals.
But the commission's powers would not of course stop there. Noble Lords will be aware of the commission's ability to conduct a formal investigation of an employer or service provider where it believes that unlawful discrimination has taken place. The commission would not require an individual disabled person in these circumstances either to start a formal investigation or to conclude one. A conclusion could mean requiring an employer or service provider to take action to remedy unlawful acts. I believe that this would cause most sensible employers and service providers to think again. These procedures need not be slower than going through the courts—indeed they may well be quicker—and they give the commission the idea of a policing role that seems to lie behind some of these amendments. There is a major distinction, however, between the commission itself acting under these powers and the commission trying to act in place of individuals in litigation.
I am bound to add that neither the CRE nor the EOC, in their respective reviews, have sought a power similar to that which Amendment No. 21 is intended to provide for the disability rights commission. One might conclude from this that these other commissions have not found such a provision either necessary or desirable.
I have already said the commission could work to keep the exposure of an individual in any legal processes to a minimum. I reiterate that where humanely possible this should be the case. However, Amendment No. 21 seeks to go further in the name of justice. We need to examine this matter carefully. The ability to deal with a case competently may be compromised from the point of view of everyone concerned if an individual's identity was withheld. I understand that anonymity in civil proceedings in this respect is quite unprecedented and courts and tribunals would have to consider any such application fully before it could be permitted. Justice has to be done and be seen to be done. There is something instinctively unjust about an individual facing an unknown accuser, even if that person is disabled. The person may have a mental or physical disability but he has no legal disability. Indeed, he may have a very powerful case with which to attack the defendant. Justice involves being fair to both sides, and not simply being sympathetic to a disabled person—which of course we all are. That is why I am afraid to say that I cannot accept this amendment without wider consultation over whether it would be appropriate for anonymity to be granted in principle.
Even then, there is a very real difficulty with the process. The "interests of justice" is, as noble Lords will appreciate, a matter for the courts or tribunals rather than for the commission. It would not therefore be a judgment for the commission whether it could take a case on behalf of an individual. There would have to be a preliminary hearing to establish whether this was indeed a case in which it would be in the interests of justice to grant anonymity. As the amendment is drafted, it does not make provision for that earlier hearing, or
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even for the status of the parties to that hearing. I do not wish to labour procedural points, but I do have to stress that the proposal requires rather more consideration before it could be made to work, even if the principle behind it were acceptable.
There is a further point. By virtue of Section 62 of the Disability Discrimination Act, employment tribunals may apply reporting restrictions. That would allow for the identity of the individual to be kept private within the context of tribunal proceedings. Comparable provisions apply in the areas of sex and race. While I accept that this does not completely address all the concerns of my noble friend Lord Ashley, I believe this would address a great many of the circumstances that he has in mind.
I do not aim to cover all of the possible difficulties now, although they are potentially rather significant. I am afraid that I see—I want to be fair and honest to my noble friend—rather little prospect of being able to accept what is being proposed. However, having had very little time to consider the substance of the amendment—it was tabled rather late—I am prepared to examine it further. I hope, therefore, that my noble friend will agree to withdraw it.
Amendment No. 5 again raises the issue of representative actions. My noble and learned friend the Lord Chancellor is, as I said in Committee, considering the matter of representative actions as part of the next tranche of civil justice reforms. I am advised that the ability of the disability rights commission, or any other public body, to undertake cases will form part of that consideration.
Perhaps I may draw a parallel here with the existing equality commissions. In Committee my noble friend made reference to the Equal Opportunities Commission and the CRE pursuing similar powers to those which this amendment is intended to allow to the disability rights commission. My noble friend Lord Morris made particular reference to it. It may help if I clarify exactly what the existing commissions have recommended in their reviews and why.
The EOC has said in its review that it believes that it should have wide powers to bring proceedings in its own name. Practices which discriminate usually affect groups of people rather than individuals. The right of the EOC to bring proceedings would allow discrimination against an entire group or class of people to be addressed. While not explicitly recommending an extension of its powers to initiate proceedings, the CRE has raised the issue of class or group actions in its review. The CRE's proposal would allow it to consider a complaint where discrimination affects a number of people without the need for each individual to bring separate proceedings. So both bodies want to be in a position to assist classes or groups of individuals in what have become known as representative actions. I readily acknowledge that.
This is a complex and wide-ranging issue and the scope and form of such proceedings will have to be fully worked through. Areas that will have to be considered include what type of bodies or organisations should be able to bring representative actions; the scope of relief

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that should be available in this type of action—for example, injunctions and damages. Consideration will also need to be given to whether it should be possible to represent an unidentified group such as all consumers or, perhaps, certain groups of disabled people. Other issues such as the right of individuals to pursue their own proceedings, the impact that any proposals might have on the courts and businesses, and the relationship with multi-party actions will also need to be taken into account.
It would, I believe, be unwise for us today to seek to make a unilateral decision about this for the disability rights commission. Moreover, it would not work, because court procedures need to be changed in order for them to be able to deal with these sorts of actions and offer proper remedy. But let me assure noble Lords that we will seek to ensure that organisations which are offered new rights to take representative actions include the disability rights commission.
As I promised in Committee, in response to a request from the noble Earl, Lord Russell, I have brought the relevant parts of that debate concerning this matter to the attention of my noble and learned friend the Lord Chancellor. In his reply to me, my noble and learned friend assured me that he is prepared to consult, through the Representative Actions Working Group, with those who have an interest in this matter. In due course, my noble and learned friend will be issuing a consultation paper. This consultation will inevitably come to an end after the Bill has received Royal Assent, as I made clear at the Committee stage. However, any new provisions about representative actions can be applied to the commission later.
Through Amendment No. 22, my noble friend Lord Ashley and the noble Baroness, Lady Darcy de Knayth, seek to allow the commission to seek an injunction to prevent unlawful acts under Part III of the Disability Discrimination Act. By virtue of its general duty, set out in Clause 2(1), to work towards the elimination of discrimination, the Bill already allows the commission to involve itself in such a way as to prevent discrimination. I agree with what the noble Lord, Lord Renton, said in that respect.
The commission could begin by approaching a service provider, perhaps through a letter or even a phone call, and offer a view about how any discrimination might be avoided. This might be all that is required for the organisation to put matters right. One should not underestimate the effect of such an approach by the commission. I am bound to say that the commission's ability to pursue matters through a formal investigation and, if necessary, to issue a non-discrimination notice, would, I believe, act as a very significant deterrent to service providers who were in danger of discriminating.
I accept that one needs to face the possibility, however remote, that an employer or service provider might still pursue actions which the commission believes could eventually lead to unlawful discrimination even after the commission has fired a shot across their bows. Amendment No. 22 is intended to allow in that circumstance for the commission to
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apply for an injunction. On what basis could the court grant an injunction? To establish whether an unlawful discriminatory act under Parts II or III of the Disability Discrimination Act has occurred, a court would require evidence that a disabled person has suffered or would suffer discrimination. That has to mean that the court would have no basis for granting the commission itself an injunction because the commission could not itself suffer unlawful discrimination. It would, however, be possible for the commission to support a disabled person who himself had sought an injunction. For these reasons, I hope that my noble friend and the noble Baroness will agree to withdraw Amendment No. 22.
I turn now to Amendment No. 13 and the second part of Amendment No. 5, which deal with the question of the commission intervening in litigation. There is nothing in the Bill as drafted to prevent the commission from making an application to any court whose procedures allow such applications to be entertained. That certainly includes appellate courts such as the Court of Appeal and the Judicial Committee of this House. It is usually only indeed at the appellate stage, when issues of fact have been described, that it is possible to see that a question of principle has arisen so as to make representation to the court by bodies such as the commission appropriate. Given that the commission will be fully entitled under the powers it is given in the Bill as drafted to make application to be heard in such circumstances, there appears, as the noble Lord, Lord Renton, discerned, to be no need for an amendment on this point.
The question relating to tribunals is somewhat different. The nature of tribunals does not allow intervention in the same way as court procedure—that applies in the same way to any organisation as it would to the disability rights commission. However, the commission could approach a disabled person and ask to assist with his or her case if it felt that there were wider issues at stake. I am sure noble Lords will agree that that is the right basis on which to proceed—with that party to proceedings in agreement. It is simply not necessary to place on the face of the Bill something that the commission can already do. I understand why my noble friend feels that this might be a useful precaution, but it would not make the power any more real. Commissions can already intervene, as I believe the noble Lord acknowledged. If they do not intervene in practice there is no reason why they would do so if they had an express power in the Bill.
I hope that I have provided some reassurance as to the considerable scope that the commission will have to assist individuals and to take part in proceedings. I can assure noble Lords that we shall not lose sight of the effect of any new arrangements on representative actions on the commission. I hope that noble Lords will therefore agree that we should not, through this Bill, seek to make fundamental changes to the legal system in this country which properly belong to a wider discussion.
As I indicated in Committee, the disability rights commission would—as the EOC and the CRE already can—be able to apply to the High Court for judicial review proceedings. Again, that point was made by the

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noble Lord, Lord Renton—although I accept that judicial review applies to public bodies and not to private ones.
I now turn to the points raised by my noble friend Lord Morris and the noble Baroness, Lady Blatch. I reject the notion that the disability rights commission will have less power than other commissions. Where there are equivalent provisions in sex and race legislation, its powers will be similar to those of the sex and race commissions. Indeed, in some areas we have made clear our intentions to develop the processes so that they are clearer and more robust. The commission will, for example, have a statutory power to enter into written agreements. I indicated in Committee our commitment to strengthening the non-discrimination notice stage of the formal investigation process. That is a matter to which we shall return later on Report.
However, my noble friend is correct in that both the EOC and CRE can initiate proceedings in particular circumstances which the disability rights commission would not be able to do. The areas concerned are discriminatory practices; advertisements; pressure and instructions to discriminate; and persistent discrimination. They relate to specific provisions in sex and race relations legislation which do not appear in the DDA, and that is the reason for the difference. As such, they could not be replicated in this Bill, the scope of which does not allow us to make amendment to the DDA more widely.
I return to the fact that the Disability Rights Task Force is examining how best to achieve comprehensive and enforceable civil rights for disabled people. We should not pre-empt its recommendations. I assure noble Lords that the Government will consider very carefully the recommendations put to us by the task force and whether changes need to be made to the DDA, and any consequential changes to the role and functions of the disability rights commission.
In the light of that explanation—and I apologise for its length—
Lord Campbell of Croy: My Lords, I am grateful to the Minister for giving way. She has given a very full reply, which I am sure the House greatly appreciated. She mentioned advertising. I wonder whether she is able to answer the point I raised about objectionable advertisements. Without a provision along the lines of Amendment No. 5, is it possible under the Bill for the commission to take action against advertisements which plainly discriminate against disabled people, either under Clause 3 dealing with formal investigations or any other part of the Bill? Or do we have to wait before something is done about such advertisements?
Baroness Blackstone: My Lords, as I understand it, that matter is being examined by the task force and we shall have to wait. If I am wrong about that, I shall of course write to the noble Lord.
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In view of my remarks, I very much hope that my noble friend and others who have put their names to these amendments will feel able to withdraw them.
Lord Ashley of Stoke: My Lords, I greatly appreciate the trouble that my noble friend has taken in dealing with this batch of important amendments. I also appreciate the tone of her response. It was very helpful indeed.
I must confess that I am disappointed. In essence she explained what is good about the Bill. But that is not in dispute. We all know what is good about the Bill. It is a marvellous Bill, and my noble friend has been congratulated on it; warm congratulations have also gone to David Blunkett and his colleagues. However, we are seeking to improve the Bill—to get more money and to extend the Bill's powers. My noble friend did not really answer the queries that we put to her simply by explaining how good the Bill is, although we readily accept her explanation.
I understood my noble friend to say that more can be achieved by the commission under the existing procedures. She was over-egging the pudding. You cannot have more being achieved under existing procedures if, in the amendments, we seek more powers for the commission. It does not add up. I think that my noble friend became rather over-excited in reading her brief and was not quite up to the mark. However, I am prepared to overlook that.
My noble friend said that individuals will be helped in some cases and that there may be representation for complainants—I believe she implied that the amendment might mean that that was against their will. I shall check my remarks in Hansard but I believe that I specifically said that the consent of a complainant would be required. It is not possible to act against the interests of disabled people if their consent is required. So my noble friend was not quite on the ball in relation to that point.
In Committee, my noble friend raised the objection that the law would not allow this provision. Therefore, with the help of the Public Bill Office, I tabled another amendment in order to get round the legal problems and to meet her objections. And now she has come up with more objections of a different kind!
My noble friend should understand that we have a difficult problem trying to support her, as we do, as honest, innocent Labour Peers. We also have to voice these criticisms. It is not good enough for the Government to give these responses when we seek to improve the Bill.
We are glad that the task force is considering how the situation can be improved. However, if we wait for the task force to make recommendations we are abdicating parliamentary scrutiny. We are waiting for a task force which may not report for some considerable time. We should press on with these opportunities in the House of Lords and try to make changes to the Bill.
Baroness Darcy de Knayth: My Lords, I am grateful to the noble Lord for giving way. Before he decides what to do with the amendment, I, too, may have

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become over-excited at the Minister's brief, but I thought she undertook to examine one aspect. Perhaps the Minister will confirm that.
Lord Ashley of Stoke: My Lords, I wish to save the noble Baroness going once more to the Dispatch Box. Despite the disappointment she gave us, she said that further consultation would take place. There was a categoric undertaking that it will take place. She spoke in good faith and wishes to help us. But she is still impressed by the lawyers in the department. Although they are good lawyers, I hope she will overcome their objections when it comes to Third Reading. I thank her again for the great consideration she gave to all our objections. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Morris of Manchester Lord Morris of Manchester moved Amendment No. 6:
Page 2, line 7, at end insert—
("( ) The Commission shall have the power to set up regional offices as it deems necessary in pursuance of its duties under this Act. ").
The noble Lord said: My Lords, after consultation with my noble friend Lord Ashley, I rise to move this amendment. Some form of local and regional support on disability discrimination issues will be invaluable not only to disabled people themselves, but also to employers, service providers and indeed everyone with an interest in the commission's activities. A regional or local point of contact, staffed by people who know the characteristics of the local environment, may be of particular value to small businesses. For disabled people, improved access will be made possible, with the opportunity of home visits to people with severe disabilities or face-to-face contact at a commission office.
The disability rights commission has substantial duties. They are likely to include advice to disabled people on their legal rights; educating and informing the general public, employers and service providers about discrimination; and promoting good practice. These services will need to be fully accessible in every sense if the commission is properly to fulfil its duties and it will itself be subject to the duties set out in Part III of the Disability Discrimination Act. A single office based in one city will by no means be accessible to people living elsewhere in the country. Travel can be more expensive and is usually more difficult for disabled people; yet often face-to-face contact with them will be the only effective way of eliciting necessary information.
After the sharp rise in petrol prices announced on Tuesday in the Budget Statement, the expense of travel for disabled people is much higher now than it was when we discussed the case for local points of contact for them in Committee on 4th February.
As I have been told in several letters from disabled people since Tuesday, there is little point in discussing new rights for disabled people if their mobility is constricted by unaffordable travel costs. Thus I hope
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very much, first, that the relevance of Tuesday's decision to this legislation will be recognised as freely in Whitehall as it is among disabled people; and secondly, that the effect of the rise in costs may very soon be taken into account in an increase in the mobility allowance.
Nor is there much point in discussing new rights for disabled people who are being told by their local authorities that, if institutional care is cheaper than the cost of maintaining them in the community, they will be referred to institutions. That is social exclusion at its most cruel. I am grateful to my noble friend Lady Hayman for the helpful parliamentary Answer she gave me on 1st March about the proposal of one local social services committee to adopt that policy.
In another recent case raised with me, a disabled man who now works part-time for £85 a week faces a cut of £75 a week in the local authority's support for maintaining him in the community. He has been told by the authority to accept the cut or return to institutional care. I quote from the letter about his case:
"He is distraught about the prospect of going back into institutional care"
Here again, we have strong testimony to the need for local points of contact to inform disabled people of their legal rights and the help available to them.
We have been assured by Ministers that the disability rights commission has the power to set up regional offices, but there has been no assurance that extra funding can be expected if the commission decides to set up such offices. That could be of crucial importance to it in deciding whether or not to set up regional offices.
At the Committee stage, my noble friend the Minister of State said that racial equality councils,
"are not part of the CRE but seek to replicate the type of network which exists in the context of disability through many voluntary organisations and other arrangements". —[Official Report, 4/2/99; col. 1622.]
She continued that therefore the funding comparison should be with the £11 million remainder for the Commission for Racial Equality, not the £15 million total funding.
However, if local voluntary organisations find themselves being used to fulfil statutory duties in relation to technical advice to business or legal advice to disabled people, then statutory funding should be available. This is extremely important to the organisations and we need to know today whether it will be available. If it is to be available, we also need to know whether it will have to come from the existing allocation of £11 million to the commission. I know that my noble friend will want to respond as helpfully as she can. I beg to move.
Lord Swinfen: My Lords, I support the amendment. As the noble Lord, Lord Morris, said, it is essential that there are offices in various parts of the country. I do not need to follow what he said because he gave a full explanation. The only objection I can see that the Government might have to the amendment is that it is in the wrong place. I wondered whether it should come in Schedule 1 instead of this part of the Bill. So far as

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I can see, the only place where any form of property is mentioned is in Clause 1(2). I wonder whether the Bill gives the power for the commission to own property in any event or to rent it. If not, we ought to put it in at the next stage of the Bill. But it is absolutely essential that there should be various offices in various parts of the country.
Baroness Blackstone: My Lords, I wish to say at the outset that the intention is to establish offices in each of England, Scotland and Wales and that this Bill, as drafted, allows the commission to set up further offices or to make what other arrangements it feels would be appropriate to carry out its work at a regional or local level. Once again, there is no reason why the commission should not set up regional offices if it thinks it appropriate.
The matter of regional offices was considered by the task force. What we propose very much reflects its recommendations. I feel it would be right, given the comments made today and at Committee stage, to say a little more about the task force's thinking and the conclusions it reached. I believe it is right that we keep faith with its recommendations on the matter since those recommendations benefited from a detailed analysis of the issues involved and from a range of individuals, members of the task force, who will be key stakeholders.
First, there is the important question of accessibility. I endorse very much what has been said about it. It is clear from the comments made in Committee and today that noble Lords feel that accessibility for disabled people is of paramount importance. I could not agree more. Let us examine what the task force recommended. It concluded that regional offices were not necessarily the answer. Three or four regional offices, in addition to the main central ones in each country, would not make the commission considerably more accessible to many disabled people. For some, other factors would be relevant such as their mobility and the accessibility of public transport. The task force recognised that accessibility could be achieved in other ways. Those ways included links with local organisations. Organisations representing disabled people are prevalent locally and also extremely effective. I understand for example that there are 12 independent living centres, over 400 local societies of MENCAP and some 110 local offices of the disability information and advice line. We need to think about not just local disability networks. Local business and service organisations and networks also meet local needs. There are 60 business links, 74 TECs, nearly 1, 000 employment service offices and approaching 700 disability employment advisers. This is by no means an exhaustive list.
There is certainly evidence that disabled people who seek advice and support will usually contact one source rather than a wide variety of different agencies. Most of those sources are local, such as jobcentres and medical services. Therefore, while the commission should be able to communicate directly with disabled people, it is only common sense that it works with existing
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networks. It would be madness not to do so. To seek to replace them may reduce accessibility rather than enhance it.
We must also consider the ability of the commission to go to the client. I cannot overstate the vital role that visiting commission officers and outreach workers can play. One may have the impression that an officer based at the main site responds to a call 200 miles away when he is able. But who is to say that these officers must be based permanently in a central office? Many people work from home these days and have the facilities to keep in close contact with a central office through e-mail, telephone, fax and so on. The commission could decide to employ officers who themselves were located around the country, had a feel for the locality and would be able to respond more quickly to local needs than a regional office. With modern day technology there is no reason why a central telephone number cannot be used to direct a caller to a local adviser where that will be helpful. Noble Lords will recognise the importance of modern technological methods of communication, particularly for disabled people. Accessing the outside world from home, not just by telephone but through the Internet and other methods, is a feature of how many people, disabled and non-disabled, operate in this day and age.
I turn to the question of funding. Some noble Lords have suggested that the Government have not considered the costs of establishing regional offices when determining the commission's initial budget. I say to my noble friend that I believe the Government have provided the commission with a realistic budget. We have no reason to suppose that that budget will not be adequate to meet the many and various functions of the commission, including providing access for people on a local basis in whatever form appears to be the most sensible. I hope that my noble friend will accept that intention. We shall want to monitor the funding of the commission. If a good case is made for additional funding the Government will be sympathetic to that.
In considering how to allocate the budget with which the commission will be provided I am sure that it will take as its highest priority what best meets the needs of disabled people and the needs of other stakeholders. The commission must be allowed discretion in this matter that is built on actual experience. The commission will need to consider a variety of mechanisms, including whether and how to use regional offices, to make sure that it truly is accessible. I stress that the Government are sympathetic to that objective. But I believe that the commission is best placed to decide what kinds of mechanisms are likely to be most effective. Accessibility is achieved by communication in all its forms, not necessarily by the buildings that people may occupy. I do not believe that we shall best serve the needs of disabled people if we pre-judge today that one way is necessarily better than another. In view of all these considerations I very much hope that my noble friend will feel able to withdraw his amendment.
6.15 p.m.
Lord Morris of Manchester: My Lords, with other noble Lords I shall reflect on what my noble friend has said in reply. My experience as a Minister persuaded me that it is far easier to improve legislation during the parliamentary proceedings than it is when it has become law. This is why we should look again, before the Bill leaves your Lordships' House, at the very important issue of providing access for disabled people as near as possible to where they live. The voluntary sector ought not to be asked to carry heavy costs in filling gaps in statutory provision. The generality of disabled people expect the disability rights commission to fund the duties it should properly discharge. To allow further time to consider the possibility of another amendment, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Formal investigations]:
Baroness Blatch Baroness Blatch moved Amendment No. 7:
Page 2, line 14. leave out ("decide to").
The noble Baroness said: My Lords, I became quite excited about this amendment. I thought that I had almost convinced the noble Baroness that this was a good point. I am grateful to her for having written to me with an explanation as to why my amendment cannot be accepted. However, I again take issue with the officials who advise the noble Baroness. Two situations are referred to in the letter. In the first case the commission itself decides to conduct an investigation; in the second case the commission is directed to do so by the Secretary of State. That is absolutely clear from the words of Clause 3.
We return to "may" and "shall" which here have very real relevance. If my amendment were accepted the clause would provide:
"(1) The Commission may conduct a formal investigation for any purpose connected with the performance of its duties".
Subsection (2) provides:
"The Commission shall"—
in other words, it has no choice in the matter—
"conduct a formal investigation if directed to do so by the Secretary of State for any such purpose".
I believe that that is eminently clear. If the commission conducts a formal investigation it does so because it has decided to do so, not for any other reason. Therefore, I still believe that these words are otiose. I beg to move.
Lord Simon of Glaisclale: My Lords, I hope that the Government will accept this amendment for the reason given by the noble Baroness. The important point is to empower the commission to conduct an investigation. It cannot do that unless it decides to do so. Therefore, it is unnecessary to say that it may decide to conduct a formal investigation.
Moreover, the drafting gives scope for an admittedly far-fetched argument that the statute carefully limits its power to deciding to conduct a formal investigation. I said that that is far-fetched, but it is the type of argument which throughout the
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legislation we have had this Session parliamentary counsel take pains to guard against, almost always by putting in extra provisions. The amendment has the great advantage of removing unnecessary words.
If the commission may decide to conduct a formal investigation, why should not subsection (2) state:
"The Commission shall conduct a formal investigation if the Secretary of State decides to direct it to do so for any such purpose"?
But that is not done; there is no reason to do it. What matters is the direction that is given and not the decision to give the direction because the direction cannot be given unless there is an anterior decision by the Secretary of State. That applies just as much to subsection (1).
It may be that the draftsman has been led astray by the terms of subsection (3), that:
"The Commission may at any time decide to stop or to suspend the conduct … but any such decision requires the approval of the Secretary of State"
That can perfectly easily and economically be re-drafted to fit in with subsection (1) as amended, as desired by the noble Baroness.
The drafting amendment may seem unimportant compared with the important rights which are vouched safe by the Bill to those who command the compassion and activity of the legislature. That is not so. Every unnecessary word we put into a statute inflates it. In 1975, the Renton Committee on the preparation of legislation—and I am pleased to see the noble Lord in his place—drew attention to the prolixity and over elaboration in the statute book and protested against it. The statute book then consisted of three volumes of public and general Acts. Ten years later, in spite of everything the Renton Committee said, it consisted of five volumes of public and general Acts. There were fewer statutes contained in those volumes.
The format was then enlarged to bring the number back to three, with quite a prolixity, but within a few years there were again five volumes now in the larger format. All that is very costly at every stage of a Bill and it is costly to those who have to buy the statute books. I should be most surprised if we do not have at least six volumes of public and general Acts after this Session, so anything we can do to eliminate even two words is worth while. It is still more worth while as a step towards at last paring down the statute book and freeing it from unnecessary prolixity. I hope that the Government will look favourably on the amendment.
Lord Hunt of Kings Heath: My Lords, I welcome the opportunity to return to the debate on this amendment and I agree with the intention of noble Lords to remove unnecessary words from the face of any Bill going through your Lordships' House. My noble friend Lady Blackstone undertook to consider the amendment to see whether it might be accommodated. We have now had the opportunity to do that and the advice we have received has satisfied us that the words "decide to" are necessary.

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The issue revolves around the distinction which is drawn between the two situations described in Clause 3(1) and (2). The first is where the commission decides to mount an investigation and the second is where it is directed to do so by the Secretary of State. I am advised that the inclusion of the words "decide to" in Clause 3(1) relates to the first of those circumstances and is necessary in order to draw the distinction between the two situations.
Lord Simon of Glaisdale: My Lords, can the Minister say why it is necessary to draw the distinction?
Lord Hunt of Kings Heath: My Lords, we are at the Report stage. I merely invite the noble Baroness to agree to withdraw the amendment.
Baroness Blatch: My Lords, I really believe that this is absurd. Clause 3(1) empowers the commission to conduct an investigation if it so decides. Subsection (2) places on the commission a duty to conduct an investigation if it is directed to do so by the Secretary of State. The distinction, if there has to be one, is drawn by the use of the words "may" and "shall". According to the first line of subsection (1), the commission is free to conduct an investigation and the words "decide to" are entirely otiose in that sense. Subsection (2) provides that:
"The Commission shall conduct a formal investigation if directed to do so by the Secretary of State".
I believe that this is an occasion on which the Minister should be brave and face down the advice that has been proffered. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, who has given advice based on that given some years ago by my noble friend Lord Renton when his committee advised Parliament on the preparation of legislation. If the Minister is not prepared to accept the amendment, I wish to test the opinion of the Committee.
6.28 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 99.

Division No. 2

CONTENTS

Annaly, L.

Cross, V.

Ashbourne, L.

Dacre of Glanton, L.

Biffen, L.

Darcy de Knayth, B.

Blatch, B.

Feldman, L.

Brentford, V.

Gardner of Parkes, B.

Burnham, L. [Teller.]

Glanusk, L.

Byford, B.

Glenarthur, L.

Caithness, E.

Glentoran, L.

Campbell of Croy, L.

Hanningfield, L.

Clifford of Chudleigh, L.

Harrowby. E.

Colville of Culross, V.

Lane of Horsell, L.

Colwyn, L.

Leigh, L.

Cowdrey of Tonbridge, L.

Lyell, L.

Craigavon, V.

Mackay of Drumadoon, L.

400

Manton, L.

Rix, L.

Marlesford, L.

Seccombe, B.

Masham of Ilton, B.

Simon of Glaisdale, L.

Massereene and Ferrard, V.

Sudeley, L.

Morris, L.

Swinfen, L. [Teller.]

Northesk, E.

Taylor of Warwick, L.

Norton, L.

Weatherill, L.

O'Cathain, B.

Wharton, B.

Rankeillour, L.

Wise, L.

Renton, L.

Wynford, L.

NOT-CONTENTS

Acton, L

Irvine of Lairg, L. [Lord Chancellor.]

Addington, L.

Ahmed, L.

Janner of Braunstone, L.

Alderdice, L.

Jay of Paddington, B. [Lord Privy Seal.]

Alli, L.

Amos, B.

Jeger, B.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Kennet, L.

Bach, L.

Kirkhill, L.

Bassam of Brighton, L.

Lockwood, B.

Beaumont of Whitley, L.

Longford, E.

Berkeley, L.

Lovell-Davis, L.

Blackstone, B.

Mackenzie of Framwellgate, L.

Borrie, L.

McIntosh of Haringey, L. [Teller.]

Bragg, L.

Brookman, L.

McNally, L.

Burlison, L.

Mar and Kellie, E.

Carter, L. [Teller.]

Miller of Chilthome Domer. B.

Christopher, L.

Monkswell, L.

Clarke of Hampstead, L.

Morris of Castle Morris, L.

Clement-Jones, L.

Morris of Manchester, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

Crawley, B.

Newby, L.

David, B.

Nicol, B.

Davies of Oldham, L.

Peston, L.

Dean of Thomton-le-Fylde, B.

Pitkeathley, B.

Dholakia L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Ramsay of Cartvale, B.

Dubs, L.

Razzall, L.

Evans of Watford, L.

Rea, L.

Farrington of Ribbleton, B.

Redesdale, L.

Gladwin of Clee, L.

Rodgers of Quarry Bank, L.

Goodhart, L.

Rogers of Riverside, L.

Goudie, B.

Russell, E.

Gould of Pottemewton, B.

Scotland of Asthal, B.

Graham of Edmonton, L.

Simon, V.

Grenfell, L.

Simon of Highbury, L.

Hacking, L.

Steel of Aikwood, L.

Hardie, L.

Strabolgi, L.

Hardy of Wath, L.

Symons of Vernham Dean, B.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Harris of Haringey, L.

Thornton, B.

Hayman, B.

Turner of Camden, B.

Hilton of Eggardon, B.

Uddin, B.

Hollis of Heigham, B.

Walker of Doncaster, L.

Howie of Troon, L.

Whitty, L.

Hoyle, L.

Williams of Crosby, B.

Hughes, L.

Williams of Elvel, L.

Hughes of Woodside, L.

Williams of Mostyn, L.

Hunt of Kings Heath, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.36 p.m.
Clause 4 [Non-discrimination notices]:
The Deputy Speaker (Viscount Simon): My Lords, I must advise your Lordships that if Amendment No. 8 is agreed to, I cannot call Amendments Nos. 9 to 11 inclusive.
Baroness Blatch Baroness Blatch moved Amendment No. 8:
Page 2, line 43, leave out from beginning to ("provisions") in line 2 on page 3 and insert ("The notice may include").
The noble Baroness said: My Lords, Amendments Nos. 8 to 12 are grouped together. These are very important amendments. The amendments standing in my name are Amendments Nos. 8 and 12.
Your Lordships may be relieved to know that I shall not go over the ground of the arguments used in Committee. The arguments were put by many noble Lords and those used by the noble Lord, Lord Ashley of Stoke, in particular were extremely persuasive.
We are seeking to put much more detail concerning non-discrimination notices on the face of the Bill. A great deal is known about the kind of content and provision that one would want in secondary legislation. The view is held by many noble Lords that it is so important that it is not just desirable but extremely helpful to have that detail on the face of the Bill.
My amendments retain a right for the Secretary of State to resort to secondary legislation. To ensure clarification and certainty and to provide practical assistance for those who must carry out that very difficult area of work—producing non-discrimination notices—there is a powerful argument for putting more on the face of the Bill rather than using secondary legislation as a vehicle for that. I beg to move.
Lord Hunt of Kings Heath: My Lords, I welcome the opportunity to return to the debate on defining the scope of non-discrimination notices on the face of the Bill.
As noble Lords will know, the idea of extending the scope of non-discrimination notices and making provision for them to deal with necessary changes to practices and procedures originates from the reviews of the Equal Opportunities Commission and the Commission for Racial Equality and from them establishing legislation.
The Disability Rights Task Force considered the issue and was keen to ensure that the non-discrimination notice stage of a formal investigation process should be made as effective as possible. But it recognised the potential concerns in relation to the EOC and CRE proposals. Those concerns were that the proposals may allow the commission to impose a particular way of addressing an issue which will lead to discrimination when there may be other ways in which to address such issues other than those prescribed. There was concern too that a very high level of understanding as to the way businesses operate will be required to define exactly what may be practical in a particular situation.
Given the timing of the EOC and the CRE reviews, we made provision on the face of the Bill for regulation-making power allowing the Secretary of State to define the scope of non-discrimination notices and related mechanisms. In Clause 4(4) there are broad examples of how it might be used. These examples were not intended to be a coherent set of procedures. In allowing for regulation-making power we recognised that the devil is, as always, in the detail. In order to ensure that the commission's powers were clearly
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understood we would need to use the power to define more closely both the scope and the mechanisms for non-discrimination notices when bringing the regulations into effect. We believe a regulation-making power to be the right way forward as it would allow a degree of flexibility. I believe that my noble friend Lord Ashley of Stoke wishes to speak to the amendments.
Lord Ashley of Stoke: My Lords, I am most grateful. My noble friend was quick to respond to the provocative remarks of the noble Baroness, Lady Blatch. I appreciate the opportunity of mentioning Amendments Nos. 9 to 11 which the Deputy Speaker said were to be considered in this grouping.
As my noble friend said in Committee, we are all agreed on the necessity to extend the scope of non-discrimination notices. I believe that the only difference between us is whether the provision should be on the face of the Bill or in regulations. The House will be aware that both the EOC and the CRE support the need for these proposals being on the face of the Bill. The views of those two bodies should be taken seriously because they are experienced people who have to face the problems of discrimination in their own fields. Operating in those fields, they have tremendous experience behind them. They know the hazards and obstacles that limit their own effectiveness. I believe that this proposal will help to avoid litigation; they, too, believe that. The avoidance of litigation could be a main aim. It is what we all want.
My interpretation of the amendment does not square with that of my noble friend, as enunciated in Committee, nor of the disability task force. They seem to suggest that it is over-prescriptive. But the amendment is not stating that in these circumstances employers must do this or that. It merely gives the commission the right to prescribe steps which will enable the employer to avoid again falling foul of the commission. It gives the commission powers enabling it to make sure that appropriate action is taken. I cannot see anything wrong with that.
The amendment puts a clear, heavy but welcome responsibility on the commission. The commission is the appropriate place because it is daily considering discrimination issues. It will be constantly seeking to ensure positive and helpful interaction between the companies and disabled people. Its objective will be to secure non-discrimination in a reasonable way as required by the Act.
I believe that the commission's reputation will depend on how it carries out the tasks placed on it by this amendment, assuming that it is accepted. It is right that this task should be the responsibility of the commission and not of the Secretary of State because the commission will have the necessary day-to-day experience.
The timing is also important because delaying tactics are unacceptable. I hope that my noble friend will agree with that. It needs to be made very clear from both the Back and Front Benches that we simply do not want delaying tactics on this issue.
6.45 p.m.
Lord Morris of Manchester: My Lords, I rise to speak on Amendments Nos. 9 and 10 in this group. The first was debated at length in Committee and in response to the strong views then expressed, my noble friend the Minister of State kindly affirmed that she would be happy to consider the issue again at Report stage. With other noble Lords, I had put it to her that power to include in non-discrimination notices the basic information listed in the amendment and in Clause 4(4) was essential. Having myself given further thought to the issue I am now more convinced than ever that this power should be on the face of the Bill and that we should not have to wait for it in regulations.
It is clearly reasonable and it will be helpful to all parties—disabled people who may be discriminated against and those who may be discriminating against them—if this can be agreed. I suspect that even those who drafted the Bill agree that the information should be in non-discrimination notices. I think that the words "in particular" gives this away.
I appreciate the Government's desire to remain flexible by allowing the administrative arrangements to be specified and modified in the light of experience. My noble friend the Minister of State explained this in Committee, but I suggest that the desired flexibility is achieved by Clause 4(3). I accept that we are moving into uncharted waters with this Bill, but the information and advice set down in Clause 4(4), which this amendment seeks to allow without waiting for any regulation, ought not to be viewed as unknown floating hazards. They are in fact fixed islands of sensible guidance through which, by means of a non-discrimination notice, a discriminator can be guided safely into harbour. It would be unreasonable in my opinion to have to wait for regulations which may be issued at some indeterminate date in the future, in order to provide a discriminator with some very helpful guidance and advice on what he needs to do and to give the commission vital information to verify that what is required to be done to prevent discrimination is in fact being done.
I turn to Amendment No. 10. This is another amendment which my noble friend the Minister of State offered to consider again in the light of the strong views expressed in Committee. The more I think about it the more difficulty I have in understanding why this crucially important power to specify when the requirements set down in a non-discrimination notice should be complied with is not firmly stated on the face of the Bill. During Committee I argued that it is absolutely essential to establish time limits by which someone served with a non-discrimination notice is required to act. Without any such time limits procrastinators will have the time of their lives emasculating the powers of the commission and devaluing the purpose of non-discrimination notices. Such procrastination could easily add unnecessarily to the costs of the commission.
I am still of that opinion. Indeed, having had time to consider the matter again since then, I am even more perplexed to understand why no time limit is included.
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A non-discrimination notice without a time limit is like a car without an engine: it may look good parked on the street, but it is not going to get very far. Setting down a time limit could save time, money and trouble. In everyday life who would dream of ordering a new car or a cooker without agreeing when one could expect it to be delivered? Who would dream of contracting to have their house repainted without specifying even the year when he wanted the work to be completed? I suggest that elementary common sense requires that a time limit should be set.
Baroness Darcy de Knayth: My Lords, I shall not delay the House much because both noble Lords who have spoken have argued such a good case, but as my name is to Amendments Nos. 9, 10 and 11, I wish to say that I support them immensely strongly. Again, they are about minimising litigation by promoting clear understanding of expected behaviour. I support the amendments very strongly.
Lord Renton: My Lords, I find myself in a strange position. I have a great deal of sympathy with the two amendments in this group moved by my noble friend Lady Blatch. I also have sympathy with the amendment moved by the noble Lord, Lord Ashley of Stoke. We cannot accept all the amendments in the group because that would make a nonsense of the clause. Perhaps I can try to be constructive. I suggest that between now and Third Reading the Government should amend the clause by combining the best elements of the amendments.
Lord Addington: My Lords, I should like briefly to give my support to the gist of these amendments. Having an action plan and enforcement details as early as possible must help. My noble friend Earl Russell assured me that he will not speak in this debate, as his views on regulation are so well known to this House that they may tire your Lordships.
Lord Hunt of Kings Heath: My Lords, I apologise to the House and to my noble friends for jumping the gun when I spoke earlier. Initially, we believed that a regulation-making power ought to have been the right way forward so as to allow for a degree of flexibility both to ensure that a consistent approach is adopted by each equality commission where that was appropriate, and to allow for the detailed administrative arrangements to be specified and modified in the light of experience.
However, I have a great deal of sympathy with many points that have been raised in the debate and in Committee. In the light of that, the Government are currently consulting across departments on the issue of non-discrimination notices. We expect to return to this matter at later stages in another place. While noble Lords will appreciate that I cannot go into more detail at this stage, I hope that noble Lords will take this as a commitment to strengthening the non-discrimination notice stage of a formal investigation process, where the experience of the existing commissions has shown it to

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be falling short. On that basis, I hope that the noble Baroness and my noble friend will withdraw their amendments.
Baroness Blatch: My Lords, I am grateful to the Minister for that. I am also grateful to my noble friend Lord Renton who, characteristically, came up with a practical suggestion. I am not over-zealous about my own amendment. The gist of all the amendments is much the same and if the amendment of the noble Lord, Lord Ashley, is more acceptable to the House, then so be it. On the other hand, an amendment could be culled from those in the group to arrive at a compromise.
I agree that we are all grateful for the offer to go away and think about it and I accept that that must be without prejudice. However, I do not believe that having the secondary legislative power for the Secretary of State and putting something on the face of the Bill will cause inconsistency. A great deal could be put on the face of the Bill that would make sense and make matters clearer for those who will have to execute powers under the Bill.
I have also said that the Secretary of State would require a long-stop power to make secondary legislation, but I believe that there is enough substantive information, referring to the scope of the non-discrimination notices, for us to have the best of both worlds, and that there should be more on the face of the Bill with a long-stop power for the Secretary of State to amend in the future. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 to 13 not moved.]
Clause 5 [Agreements in lieu of enforcement action]:
Baroness Blatch Baroness Blatch moved Amendment No. 14:
Page 3, line 34, at beginning insert ("to suspend or").
The noble Baroness said: My Lords, as I feel strongly about the matter, I wish to press the Minister for greater clarification of what he said in Committee. The need for the commission to be as effective as it can be and as far as possible to keep cases out of the courts unites all noble Lords who have spoken on the Bill. I introduced the notion of suspension, that where proceedings have begun, and where there is some understanding and some realisation that compliance can be achieved without pressing further, the procedure should continue only if compliance is not achieved, rather than simply stopping or suspending the case and, if necessary, in the future dropping it. I believe that adds one more stage to the process which adds flexibility and does little more to keep cases out of the courts.
In replying to the amendment, the Minister said, first, that he would write to my noble friend Lord Renton about the potential compromise character of the agreements to which my noble friend referred. I am not sure whether the noble Lord has done that. Normally such letters are passed around other Members. If he has written, I would be grateful to see a copy. Secondly, the Minister said that the provision, as drafted, allows a range of possible steps to be agreed, including simple suspension.
I have re-read the Bill, including this clause, but I am not entirely clear how the words on the page achieve that. I would be grateful to the Minister if he could tell me where what I want to achieve by the amendment is fully subsumed in the Bill. I beg to move.
Lord Swinfen: My Lords, I want to support the amendment. If the commission is completely satisfied that the person or firm that has been offending is determined not to re-offend, it can withdraw completely. If it is not satisfied, as the Bill is drafted, it can take such people to court. If there is an individual who says that he will do what is suggested, but the commission is doubtful, because the individual is not very reliable, the commission will be in a position to suspend action which means that the commission can hold the matter over the person's head and make certain that he will undertake that which he has promised. That is an extremely useful tool.
I do not know whether the noble Lord—he looks as though he is going to answer but he is shaking his head—has children, but it is useful to be able to hold a threat of punishment over children to ensure that they behave. This is exactly the same thing. There must be a power that can be held in the balance.
Lord Renton: My Lords, I also wish to support the amendment. It will be a strange situation if we do not have the words "to suspend or". The commission will not take any further steps in the investigation, but theoretically the investigation could be left open and in order to remove uncertainty we need the words "to suspend or". When legislating, an important point is to create certainty and not uncertainty. Therefore, I warmly support the amendment.
7 p.m.
Baroness Blackstone: My Lords, my noble friend Lord Hunt did indeed reply in writing to the noble Lord, Lord Renton, and I shall ensure that the noble Baroness, Lady Blatch, receives a copy of the letter. From the noble Lord's support of the amendment, it seems that he may not entirely accept its contents.
In returning to debate this amendment, I wish to make clear from the start that the drafting of the clause allows a range of possible steps to be specified in a written agreement, including simple suspension—that is, allowing the revival of the formal investigation, but also allowing, say, the investigation to be brought irrevocably to an end. In seeking to specify one of the alternatives, this amendment neither adds to, nor subtracts from, the range of options available to the DRC. Therefore, perhaps I may advise the noble Lord, Lord Swinfen, that suspension is allowed under this clause. Clause 3(3) expressly gives the commission the power to suspend the conduct of a formal investigation at any time. I hope that that helps the noble Baroness, Lady Blatch, who also asked about that point.
Clause 5(5) allows the agreements to be varied or revoked even if suspension is not included in the terms of the agreement. It may help to illustrate this if I explain once more the background to the provision and how it is intended to operate. If the disability rights

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commission has reason to believe that a person may be committing unlawful acts and decides to conduct an investigation, Clause 5 gives it the power to stop the investigation and enter into a written agreement with the person under investigation. In doing so, the commission undertakes not to take further steps in the investigation of the unlawful acts in question and not to proceed to the issue of a non-discrimination notice. The person being investigated would agree to abide by the conditions of the agreement.
If the statutory parts of the written agreement are breached—that is, those requirements that could be included in a non-discrimination notice—it is then open to the commission to take enforcement action as if a non-discrimination notice had been issued.
But enforcement action is not the only course of action available. It is open to the parties, in drawing up the terms of the agreement, to specify that a breach could also lead to the resumption of the investigation or agree this after the written agreement has been reached; or, indeed, for the DRC to decide to do this in order to find out if an agreement has been complied with.
Perhaps I may take up the point which the noble Baroness made forcefully in Committee, that court action should be seen as a last resort. We take it as axiomatic that the DRC will proceed on the basis of co-operation rather than confrontation. I very much agree that we want to avoid court action wherever we can. Enforcement should be a last resort to be used against those really blatant discriminators who do not follow the commission's lead in seeking an agreed solution.
Both the Equal Opportunities Commission and the Commission for Racial Equality have made use of written agreements informally and have found them a useful and flexible tool in the formal investigation process. I stress that the drafting of Clause 5 allows the disability rights commission to make arrangements to resume a formal investigation if it considers it appropriate to do so in the sort of instance to which the noble Lord, Lord Swinfen, referred. I hope that I have reassured the noble Baroness and that she will withdraw the amendment.
Baroness Blatch: My Lords, I sort of follow the logic of that answer, but if I accept the explanation which the noble Baroness has given, I have to ask the question: why do we have sub-paragraphs (i) and (ii) of subsection (2)(a)? What is the point of those provisions? If the Minister is telling me that the commission can conduct a formal investigation, suspend it or stop it and that all of those powers are covered by Clause 3, what is the point of specifying in subsection (2) that,
"An agreement under this section is one by which—
(a) the Commission undertakes"—
the provisions do not state "suspend"—

"(i) not to take any further steps …and

(ii) if the Commission has made a finding that any of the unlawful acts in question were committed, not to take any steps or further steps with a view to the issue of a non-discrimination notice"?

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I am not sure that the Government can have it both ways. I should be grateful for a response on that point.
Baroness Blackstone: My Lords, I see what the noble Baroness is saying, but I think the commission has the flexibility to pursue either route—that is, either to suspend and then return to an action when there is no satisfactory resolution of it, as provided for in Clause 3(3), but also not to take any further steps in the investigation where that is appropriate. If I am wrong about that, I shall write to the noble Baroness to clarify the point further.
Baroness Blatch: My Lords, I shall be grateful if the noble Baroness does that because "not to take any further steps" means stopping the investigation. I am in some confusion now about the relationship between Clause 3(3), which simply states that the commission may at any time decide to stop or to suspend the conduct of a formal investigation, and what seems to be the convoluted discussion about the provisions of sub-paragraphs (i) and (ii) of Clause 5(2)(a). I shall be grateful if the noble Baroness can write to me between now and the next stage. I beg leave to withdraw Amendment No. 14.
Amendment, by leave, withdrawn.
Clause 6 [Assistance in relation to proceedings]:
[Amendments Nos. 15 to 17 not moved.]
Lord Swinfen Lord Swinfen moved Amendment No. 18:
Page 4, line 44, at end insert ("and assistance").
The noble Lord said My Lords, in moving this amendment, I wish to speak also to my Amendment No. 19. As the House knows, Amendment No. 20, which stands in the name of the noble Baroness, Lady Blackstone, is grouped with my amendments.
I have tabled my two amendments on behalf of the Law Society of Scotland. At this stage, they are probing amendments, but I may need to return to them at Third Reading. Amendment No. 18 would have the effect of ensuring that the disability rights commission is able to arrange for the same type of legal advice and assistance that a litigant in receipt of legal aid would obtain. It would ensure consistency of application and approach between the DRC measure and legal aid under the Legal Aid Act 1988 and the Legal Aid (Scotland) Act 1986. That is because both those Acts provide that eligible applicants are entitled to legal advice and assistance, and it is appropriate that those obtaining assistance from the DRC have the same level of advice and assistance as those who may be legally aided in the same or a related issue.
Amendment No. 19 seeks to clarify before which bodies the DRC will be able to arrange for representation. The terms of Clause 6(3)(b) allow the commission to arrange for legal or other representation. The amendment would limit such representation to that before a court or tribunal. The DRC's resources will be limited. Accordingly, they should be directed where they have the greatest effect. I beg to move.
Lord Renton: My Lords, if it is the Government's intention that more than legal advice shall be given,

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surely these two amendments should be made. I hope that it is the Government's policy that they will go so far as to enable such people not only to receive advice, but to have help in representation.
Baroness Blackstone: My Lords, I am pleased to be able to speak now to Amendment No. 20, which gives effect to an amendment tabled by the noble Lord, Lord Rix, in Committee. I accepted the amendment but it was subsequently inadvertently withdrawn. I shall speak first to Amendment No. 20 and then to Amendments Nos. 18 and 19 which relate to the same clause and also concern the extent of the assistance the DRC can offer to disabled applicants in relation to proceedings.
Clause 6 of the Bill gives the commission the power to provide assistance to individuals in relation to legal proceedings. Subsection (3) sets out the range of assistance the commission may provide and includes a general provision for it to provide any other assistance which it thinks appropriate.
The purpose of the noble Lord, Lord Rix, in tabling the amendment in Committee, and the purpose of this amendment now, is to make clear on the face of the Bill that the DRC will be able to arrange for somebody else to provide assistance which it deems appropriate but which it is not in a position to or may not wish to provide itself. I ask noble Lords to accept the amendment.
Turning to Amendments Nos. 18 and 19, Clause 6(3) sets out the range of assistance the DRC may provide to individuals in relation to proceedings. It expressly covers legal advice, legal or other representation and dispute settlement. It then goes on to provide for any other assistance which the DRC considers appropriate.
The noble Lord, Lord Swinfen, tabled two amendments. The first seeks to add the words "and assistance" after the provision in Clause 6(3)(a) which specifies that the DRC may provide or arrange for the provision of legal advice.
Noble Lords may find it helpful if I explain that, taken with the amendment we have tabled in relation to Clause 6(3)(d), I believe that we have now a fully inclusive clause in terms of the types of assistance that the DRC could offer. I do not believe that this amendment tabled by the noble Lord, Lord Swinfen, does extend in any way the commission's powers and it is therefore unnecessary. I hope the noble Lord will be content that the government amendment has picked up on any shortfalls he saw in the wording of the clause and therefore he will withdraw that amendment.
I turn now to the other amendment of the noble Lord, Lord Swinfen, which seeks to specify on the face of the Bill that Clause 6(3)(b) gives the DRC the power to arrange for legal representation before any court or tribunal but not before other bodies or hearings.
I can confirm that the clause as drafted allows the commission to arrange for legal or other representation in any court or tribunal. However, representation may go wider than a court or tribunal. For example, there is express mention in the clause of seeking to procure a settlement of the dispute, which may involve arbitration
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or some other form of alternative dispute resolution. Indeed, the new reforms to court procedure that come into force in late April will require litigants to consider other forms of settlement. We would want to be sure that the commission could still support the disabled person in these sorts of proceedings. They would still be proceedings for the purposes of subsection (1) of the clause but would not be before a court or tribunal.
While I appreciate that the noble Lord has concerns about spreading the DRC's funding too thinly, I think it would be wrong to limit the DRC's powers to arrange representation in such circumstances. I suspect that he agrees with and accepts that. The DRC should be free to set its own priorities and make decisions about the appropriateness of providing assistance in such cases, taking into account the circumstances of the case. I hope that in the light of my explanation the noble Lord will withdraw that amendment too.
Lord Swinfen: My Lords, that sounded most encouraging, but the noble Baroness will appreciate that I should like to read what she has said and study it at my leisure and also with the Law Society of Scotland. I have the feeling that I may not be coming back at Third Reading, but one never knows. I beg leave to withdraw Amendment No. 18.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 20:
Page 5, line 4. after ("provide") insert ("or arrange for the provision of).
On Question, amendment agreed to.
[Amendments Nos. 21 and 22 not moved.]
7.15 p.m.
Clause 8 [Codes of Practice]:
Lord Swinfen Lord Swinfen moved Amendment No. 23:
Page 6, line 40, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, this is another amendment that I am moving on behalf of the Law Society of Scotland. The amendment will ensure that any provision of a code of practice must be taken into account by a court or tribunal when determining a case under Part II or Part III of the Disability Discrimination Act 1995.
The reason for this is that the terms of Clause 8(8) provide that any provision of the code of practice for which it appears to be relevant in proceedings under Part II or Part III of the 1995 Act may be taken into account by a court or tribunal in determining the question. However, the Scottish Law Society believes that relevant codes of practice must be taken into account in these circumstances and that discretion in such matters is inappropriate. I should have thought that if there was a code of practice it was extremely unwise at any time to ignore it. I beg to move.
Baroness Blatch: My Lords, my Amendment No. 24 is grouped with this amendment. I should like to support my noble friend in moving Amendment No. 23. The

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revocation of a code of practice would be a very serious issue indeed. It may be a wholly acceptable reason but it would certainly be somewhat disruptive and there would have to be good reason for doing it. I accept one of the points that the Minister made when responding to this amendment at Committee stage, that it would be a very rare occasion. However, I think that that is all the more reason and strengthens the case for accepting Amendment No. 24, and that is that it should be a matter considered by both Houses of Parliament.
I also accept that the scrutiny committee has seen this Bill and it is not one of its recommendations. But that does not constrain us from making other recommendations. I rise merely to appeal once more to the Minister to re-think the response to this suggestion and to say that on the very rare occasions when subsection (6)(c) is invoked—in other words, where the Secretary of State revokes by an order a code of practice—he will think again that it is a matter that should by right come before both Houses of Parliament.
Lord Hunt of Kings Heath: My Lords, I shall deal first with Amendment No. 23 tabled by the noble Lord, Lord Swinfen, who returns us to the issue of "may" versus "shall". Clause 8 allows the disability rights commission to prepare and issue statutory codes of practice giving practical guidance on how to comply with the provisions of Part II and Part III of the Disability Discrimination Act. It may include in such codes if it thinks appropriate advice on matters of good practice.
New subsection 53A(8) gives courts and tribunals the discretion to take into account any provision in the code of practice which appears to them to be relevant in any legal proceedings. Although it seems unlikely that courts and tribunals would not give due consideration to any relevant provision of a code of practice, I agree that the wording suggested by the noble Lord, Lord Swinfen, would make clearer the expectation for courts and tribunals to do so. I am therefore happy to accept the amendment.
Turning now to Amendment No. 24 from the noble Baroness, Lady Blatch, subsection (6)(c) allows the Secretary of State to revoke a code of practice by order at the request of the commission. Such orders would be subject to the negative resolution procedure. The purpose of the noble Baroness's amendment is to make these orders subject to the affirmative resolution procedure, as she said. As the noble Baroness said when we discussed it at Committee, it seems that it would be unusual for a code of practice to be revoked rather than simply being revised and reissued. An example of where it might be revoked is where a code is so substantially changed that in fact it would be a new code. In this case the power to revoke the old code would be no more than a tidying up exercise. One might, however, have a situation (perhaps again quite unlikely) where a European directive might make such a major difference to the law that an existing code needs to be withdrawn without being replaced or before a new one is begun or completed. In such cases Parliament may well have views and clearly it is right to have a procedure for
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Parliament to consider that. But we believe that the negative resolution procedure provides ample scope for Members of another place and Members of this House to request a debate if they feel it appropriate in the circumstances.
As I mentioned in Committee, all the regulation-making powers in the Bill have been considered in detail by the Delegated Powers and Deregulation Committee—indeed, the noble Baroness referred to that—and its response suggests that it too considers the negative resolution procedure to be right and appropriate in the circumstances.
Lord Swinfen: My Lords, it is a pleasure to have an amendment accepted by the Government when I am on this side of the House. It is the first time that this has happened to me on this side of the House although it occasionally happened when I was on the other side of the House. More often than not I had to fight hard and force it through in the Division Lobby with the support of noble Lords opposite, for which I was always grateful. I apologise to my noble friend for not mentioning that her amendment was grouped with mine.
On Question, amendment agreed to.
Baroness Blatchhad given notice of her intention to move Amendment No. 24:
Page 7, line 3, at end insert—
("(10) An order under subsection (6)(c) shall be made by statutory instrument; and no such statutory instrument shall be made until it has been laid in draft before, and approved by resolution of, each House of Parliament. "").
The noble Baroness said: My Lords, I have been worn down by my noble friend on a number of occasions so I know the feeling when one concedes an argument. I congratulate my noble friend and warmly accept what the Government have done in response to his amendment.
I am sorry that the noble Lord does not feel able to continue that largesse to include Amendment No. 24.
The Deputy Speaker (Lord Strabolgi): My Lords, I am sorry to interrupt the noble Baroness. If she wishes to speak to this amendment, which she is perfectly entitled to do, she must move it first.
Baroness Blatch: My Lords, I spoke to this amendment because it was grouped with Amendment No. 23.
The Deputy Speaker: My Lords, it has not yet been moved.
Baroness Blatch: My Lords, in that case I beg to move Amendment No. 24. I am suitably chastened and deeply apologetic for falling foul of the procedures.
The Minister actually strengthened the case for affirmative resolution. First, he said that it would be a rare occasion when it happened; he also cited some dramatic reason as an example of how it could happen. The noble Lord also talked about representing a new

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code of practice. I believe that in both the revocation and the reinstatement of the code of practice, this House should automatically use the affirmative resolution procedure and not the negative resolution procedure which relies rather on chance.
I have to say with some feeling that I now receive little notice of regulations coming from the Department for Education; I cease to receive regular information from the department and find that I have to be almost a walking detective on a daily basis to find out what is happening. That is what happens with the negative procedure. I would say to the noble Lord that the affirmative procedure guarantees that it comes before both Houses; that both Houses have an opportunity to understand what the Secretary of State is doing and the reason why he is doing it in such dramatic circumstances as having to withdraw a code of practice and possibly at some later stage to reinstate it or reinstate a new one.
I will return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, If Amendment No. 25 is agreed to, I cannot call Amendment No. 26.
Clause 10 [Procedure for amending s. 7(1) of the 1995 Act]:
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 25:
Page 8, leave out lines 9 to 17 and insert—
("

(a) such organisations representing employers as he considers appropriate;

(b) such organisations representing disabled persons as he considers appropriate: and

(c) once it has been established, the Disability Rights Commission.

(4) A consultation under subsection (3) shall be commenced on or before 1st January 2000.
(5) In the event that the Secretary of State decides to make an order under subsection (2) the order shall be made within six months of the completion of the consultation process under subsection (3). "").

The noble Lord said: My Lords, the purpose of Amendment No. 25 is to enable the Government to move as quickly as they can to include practically all employers in the provisions of the Disability Discrimination Act.
The Government recently lowered the small employer exemption as regards the DDA from 20 to 15 employees. That sounds as though it was an advance. In fact there was a lamentable failure to take advantage of an opportunity to include all employers bar those with two or less workers, as demanded by the Act. I can see no valid reason why any firm should be exempt from an Act which merely requires employers to do what is reasonable to avoid discrimination against disabled people. There was never a more honest or reasonable proposition put before Parliament.
What is "reasonable" will vary according to the size and the resource of the employer. So there is no possibility at all, according to the Act, of any "unreasonable" burdens being imposed on small employers. Any claims to the contrary would be
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standing the law on its head and the equivalent of saying black is white; tall is short; fat is thin; or "reasonable" is "unreasonable". It does not make sense. No matter how one twists, distorts or interprets the dictionary, "reasonable" is "reasonable" and no employer can have "unreasonable" demands forced on him.
At Committee stage there was an unholy alliance between my noble friend Lady Blackstone and the noble Baroness, Lady Blatch. My noble friend used the alleged fears of small employers about costs to justify the exemption and was supported by the noble Baroness, Lady Blatch. Perhaps my noble friend could give us evidence of those fears about excessive costs on the poor, small employers, bearing in mind the categorical statement about "reasonable provision".
The noble Baroness, Lady Blatch, spoke about the survival of small firms being at risk. Despite our political differences, we are used to expecting eloquence and reasonable arguments from the noble Baroness, but on that day she must have got out of bed on the wrong side or just had a bad day to make claims like that. How could she say that all those small firms would be at risk from "reasonable" accommodation. I hope that the noble Baroness will take part in this debate and justify that nonsensical proposition. I do not see how she can do it.
Many employers are already covered by the service provision duties of the DDA, and bringing them all into the DDA poses no problems at all. In fact—I hope the noble Baroness will agree with this—it will help to avoid confusion. With some in, some out and some not knowing whether they are in or out, nobody knows whether they are coming or going; they will all be confused about the provisions of the Act, what their duties are, how they avoid falling foul of the law, how they discriminate and what it means. But if they are all included in the Act, they will know exactly what they have to do: "Do not discriminate against disabled people".
I hope that this reasonable proposition to ask employers to stop discriminating against disabled people will have no opposition in the House today. I beg to move.
Lord Addington: My Lords, this is an amendment and an aim which I wholeheartedly supported throughout the history of the legislation of the DDA. Basically, if somebody is going to be discriminated against, they can be discriminated against as efficiently in a firm of 23 as in one of 13. When it comes down to the basic right that one should not be discriminated against, that should be an absolute.
The defence of reasonableness has been put forward, as the noble Lord, Lord Ashley, said. We are not asking for severe dyslexics to become proof-readers for publishing houses; for somebody who is profoundly blind to work in a hardware store choosing colour patterns or paint. We are saying that when one is discriminated against purely on the grounds that one has a disability—not that one is incompetent to do the job because of that disability—then that should not be grounds for denying one employment. It is incredibly simple. It is a matter of principle.

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I make clear from the start that I will not be moving the amendment that stands in my name, Amendment No. 26. However, I expect the Government to try to give us some further encouragement at this point. They have arbitrary line can be moved down, so why not move it down the whole way?
The amendment provides for a definite date. Employers are worried about that. Indeed, if they know when it will happen, that will remove much of the worry and allow them to prepare for it. That, too, should be borne in mind. Stating when something will happen is a great way of allowing people to prepare for it. Surely that must count when considering the peace of mind of small employers. I say again: this is most important. Indeed, it is a fundamental issue in the Bill. It is an issue that we should embrace now rather than later.
7.30 p.m.
Baroness Blatch: My Lords, how can I resist the temptation to respond to the invitation extended to me by the noble Lord, Lord Ashley of Stoke, to come back on this issue? I have immense sympathy with the points made by the noble Lord, and am especially supportive of the test of "reasonableness". I believe that the latter would be very important in such a situation.
However, the point I sought to make at the last stage of the Bill related to the very real difficulty of quantifying the problem. I am not sure that there has been a sufficient survey of very small employers—indeed, we are now talking about employers with 13 or fewer employees—regarding the degree to which this issue is a problem. Moreover, there is the test of getting the commission up and running, working closely with small employers, and thus helping them meet their obligations under the Act.
However, the particular point that I made—and this is something about which we should be most cautious—related to a situation where the requirements on an employer to meet its obligations under the Act necessitated the kind of expenditure which put the company's very survival into question. I have in mind the kind of expenditure that could not be afforded by the employer. Therefore, it would be a question of the company going to the wall and the employees, one or more of whom may be disabled, losing their jobs. I am not sure whether the test of reasonableness would come into play in those circumstances. Indeed, there may be some replication of the effects of another piece of legislation which was passed by Parliament some years ago—the Environmental Pollution Act. It introduced the notion of BATNEEC (best available technology not exceeding excessive costs). The idea was that people should put in place measures to produce cleaner processes in manufacturing companies. However, if the cost of compliance proved to be so great that jobs were put at risk, those companies were given time and sometimes their obligations under the Act were waived so as to allow them to survive. Those are the sort of issues that I expect the Government to address.
Finally, I turn to the question of whether the number should be 14 or whether, as the amendment suggests, it should go down to 2. I see no logic whatever in bringing
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the arbitrary line for compliance with the obligations under the Act down to a company employing only one other person; that is to say, a single employer employing only one member of staff. If an employer who employs two people is caught by the legislation and can be found guilty of not complying with its provisions, it seems to me to be perfectly logical that it should apply to an employer employing only one person. Of course, if the person is self-employed, it goes without saying that it must be for that person to produce the kind of conditions under which he wishes to work. Therefore, I see no logic in stopping at two. If one is to go below 14, it seems to me that the logical place to stop would be with the self-employed, thus leaving the latter free to determine their own conditions of work.
I have enormous sympathy with the proposals, but I am not sure how far the test of reasonableness would work in practice. I believe that it would be a good idea to speak more with employers, employers' organisations and trade unions in order to gain some quantification of the problem. It would be helpful to give this as an early task to the commission to see how in a practical way it could help small employers to comply with their obligations under the legislation.
Baroness Darcy de Knayth: My Lords, I support these amendments most warmly. I agree with what the noble Baroness, Lady Blatch, said, with a few reservations. We all want the same thing: to remove the arbitrary line. Of course, I acknowledge that the number went down from 20 to 15 in December. We disagree on when this should be removed. In Committee on 4th February (at col. 1672 of Hansard) the Minister said that she felt the Government needed to find out more about how the courts and tribunals were interpreting the concept of reasonableness so as to help them to inform and reassure the small employers. Indeed, that was very much what the noble Baroness, Lady Blatch, had in mind.
However, there is another side to the argument. Indeed, it was compellingly argued by the noble Baroness, Lady Hollis, on the second day in Committee on the Disability Discrimination Bill on 15th June 1995. She said—and I shall paraphrase her remarks to begin with in the interests of time—that all organisations were protected from having to make adaptions which were unreasonably costly. She went on to say that if the small firms were excluded at that stage, then what counted as unreasonably costly would actually be determined by the larger firms to which the Act would initially apply. So the concept of reasonableness would be determined by the larger firms. Therefore, smaller companies might have lost their voice and might actually lose out.
The noble Baroness then said:
"We do not believe that small firms should be excluded from the Bill. We do not believe that they need the double protection both of reasonable cost and of size. However, we do believe that they may continue to exhibit discriminatory practices unless they are required to comply with the law. We also believe that small companies which want to employ disabled people may fear that they will be undercut competitively without such inclusion". —[Official Report, 15/6/95; col. 1898.]

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I believe that the noble Baroness made a powerful case. Nevertheless, I hope that the Minister will respond more positively this time. If she does not, perhaps she will agree to consider the matter before Third Reading.
Earl Russell: My Lords, my noble friend Lord Addington has fully dealt with the human rights aspect of the amendment. I should like to address rather tentatively the area to which the noble Lord, Lord Ashley, drew our attention; namely, the agreement between the two noble Baronesses on the other two Front Benches. He is not the first person to composite them. Indeed, I think it was the Guardian at the beginning of this Parliament which composited them under the title of, "Baroness Tessa Blatch". The common point that they have brought forward is the belief in flexibility and in keeping down business costs. This is the area about which I want to think tentatively and in an exploratory way.
We all agree that business must be able to make a profit; if it does not, there is no future for any of us. We all agree that costs which are impossible to bear are likely to have serious effects. The real question is how far one goes in that direction. If one studies views about labour market flexibility over the past century or so, it will be seen that those views have always been cyclical. We have periods of unregulated competition; then the tide swings back the other way; and, finally, it goes round the circle again.
I do not know how many noble Lords present in the Chamber today watched the television programme "Newsnight" on the day when the Fairness at Work White Paper was published. The programmed claimed—and its research is, I think, quite often good—that among people working in business schools there is now a tendency to suggest that firms that have a rather less unregulated approach to their employees and which are rather more generous about pay, tenure and holiday conditions, and so on, in fact do rather better in profit terms. I do not know what is behind that suggestion. I hope that the Minister does. However, if she does not, she may possibly find out and ascertain how seriously the Government want to take it.
It seems to me that we may be at the beginning of another turn in the cycle of views on the question. It will not be the first; indeed, I am sure that it will not be the last. There obviously must be a limit as to how far labour flexibility can go. In the first place, there is clearly a potential truth in the fact that a satisfied workforce may be capable of putting more effort and more loyalty into the business than a dissatisfied one. The other point of real substance is that if labour market flexibility goes too far and wages go right down and conditions get harder, in the end the employees of these firms will find difficulty in buying others' products.
Last summer there was the prospect of a world recession. It seems to have stopped just short of that, but it was a fright which caused many people to do a certain amount of thinking. We might wonder whether flexibility may perhaps go too far. Of course, the key point is that we are dealing with measures which are designed to enable people to enter the labour market who might otherwise be unable to do so. The general
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thrust of government policy is, wherever possible, to give more people the chance of entering the labour market, to remove barriers in the way, and to make it easier for them. I do not think that the social security Bill is quite as crippling as some people suggest. But where it can be reduced by allowing people to do the things which they positively want to do, then it seems to me to be well worth doing.
If we do the costings of all this properly and we consider the overall effect on the national economy and on the world economy, the balance may not be quite as much in favour of flexibility as we think at present that it is. I say this with great tentativeness, but I shall be interested to note whether other people who know much more about this than I do also start thinking about it.
Lord Swinfen: My Lords, I am not a lawyer and I have absolutely no legal training, but I have always understood that it was a principle of law that all should be equal under the law. As the situation stands at the moment disabled people employed by smaller firms are not in an equal position to those employed by larger firms, and that is wrong. It is morally wrong. The fact that allowances have to be made for those people and alterations made to premises is protected by the concept of reasonableness. The reasonableness will depend on the firm concerned. Some small firms will struggle to exist and therefore it would be unreasonable for them to pay the cost of installing a ramp. Other small firms will make huge profits with no trouble at all and therefore in their case it would be unreasonable for a ramp not to be installed. Each case must be considered on its own merits. That can be done quite easily by considering the firm concerned and the disability of the person concerned. The same also applies to the large firms. It is, in my view, quite wrong that this discrimination—for that is what it is—should be allowed to continue. To misquote George Orwell, I am reminded of the situation that all animals are equal but some are more equal than others. I strongly support the amendment of the noble Lord, Lord Ashley.
7.45 p.m.
Baroness Blackstone: My Lords, I hope that Members of your Lordships' House will forgive me if at this time on a Thursday evening I do not pick up some of the rather broad points that have been made in this debate. While I endorse what the noble Earl, Lord Russell, said about the need for joined-up policy thinking, the importance of considering matters such as the Fairness at Work White Paper and the social security Bill, and seeing how they all fit together, I do not think an amendment at the Report stage of the disability rights Bill is perhaps the right vehicle to address such issues.
As with the similar amendment moved by my noble friend Lord Ashley in Committee, the purpose of Amendment No. 25 is to try to have another consultation about the small firms threshold before 1st January 2000. My noble friend wants to ensure that the Government reduce the small employers' threshold without necessarily waiting for the commission to be established. I know how strongly he feels about that.

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The purpose of the noble Lord, Lord Addington, in tabling Amendment No. 26—although I am not sure whether he was speaking to that amendment or to my noble friend's amendment—
Lord Addington: My Lords, I thought I had made it clear at the start of my speech that I would not move Amendment No. 26.
Baroness Blackstone: My Lords, I am grateful for that clarification. However, the commission would have to be consulted, as we intend, because that requirement in the Bill would not be amended. The noble Lord's purpose is therefore to ensure that a consultation takes place as early as possible while trying to meet our concern that the commission should be involved. I have considered again the comments that a number of noble Lords made in Committee, but I am afraid to say that I have not been entirely persuaded by them as to the virtue of beginning a consultation before January. That does not mean to say that I and the Government are not extremely sympathetic to lowering the small firms threshold again. However, the question concerns when that should be done.
We have made clear our commitment to achieving comprehensive civil rights for disabled people. Where we differ from noble Lords who have spoken on this is on the timing of implementing further change to the exclusion threshold. We believe that effective rights for disabled people require the support and understanding of business. Seeking the involvement of the commission in the future is entirely right given that we are establishing it in part to advise us on reviewing the working of the DDA and in improving awareness of disability issues among employers.
The noble Baroness, Lady Darcy de Knayth, quoted what my noble friend Lady Hollis said when the Disability Discrimination Act was going through this House. I follow that by saying that in December we made a reduction in the threshold from 20 employees to 15. That is a significant step forward. We did that fairly soon after coming into government. I reiterate that it has widened the coverage of the employment provisions of the DDA to bring in 45, 000 more employers with around 800, 000 employees—that is an awful lot of additional people—any of whom may need protection in the future and 70, 000 of whom are currently disabled. Every disabled applicant for a job in these firms is also covered. Over 75 per cent. of disabled employees are now covered by these provisions. Of course I agree with my noble friend that eventually we shall want to reach those who are not covered.
The concept of reasonableness which was mentioned by the noble Baroness, Lady Blatch, will certainly help to ensure that small employers are not unfairly burdened. However, at the moment we do not know how the courts will interpret the meaning of reasonableness. Preliminary findings from research that will be published soon shows that there is concern about what might count as reasonable, even among those employers covered by the DDA since December 1996. There was an expectation that case law would probably make the
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position clearer over time but also a belief that more guidance was needed despite a detailed code of practice. Guidance is one of the things which the commission will be able to provide and by then the courts are likely to have clarified more key areas of the DDA. Therefore we see the setting up of the commission as entirely constructive and helpful in taking this measure forward.
No one will benefit from the very smallest employers having to learn by trial and error how this law applies to them. Such employers rarely have specialist personnel who can devote time and expertise to dealing with some of the issues that are involved here. There is a fear—which I think we should recognise—among very small firms that relatively small mistakes will prove costly at a tribunal. It is not so much that the costs of employing disabled people need necessarily be high, although I have to say that I do not think we should completely dismiss those costs either. There are sometimes costs. That is, I believe, recognised by everyone who has spoken.
Although many small firms already employ disabled people, a number do not. Even some of those that do know less—I think perhaps understandably—about disability than larger firms, and they do not always know how to respond effectively, as they should, to the needs of individual disabled people. All the information and advice that the commission will provide ought greatly to help in this process.
Some small firms may know about a particular disabled employee but if another develops a disability or someone with an uncommon condition applies for a job, the circumstances may not always be quite so clear. That is the reality we need to accept.
That said, disability issues are often fairly straightforward. Everyone, whether disabled or not, has their own requirements. Most can be met relatively simply and cheaply. Employers are generally quite skilled at getting the best from their employees in any event. However, the legislation is new; it is in places quite complex. We believe that difficulties in understanding and applying the law may be rather greater for those businesses that are currently below the threshold. We do not want extended protection of employees under the Disability Discrimination Act to create unjustified fears for smaller businesses which we are, through various measures at present, trying to encourage. Our economy very much depends on them. It would be unfair and, I think, would cause some employers either to avoid their duties or make very poor attempts to ensure compliance, perhaps leading to bad employment relations.
One of our key objectives is to ensure that evidence is available on the effects of the provisions on very small employers. Some of that will remove uncertainties and provide both the Government and the commission with a really informed basis for considering further change. Once again I want to reassure those noble Lords who feel strongly about the matter that we are very supportive of that. Our comprehensive programme evaluating the Disability Discrimination Act will produce findings which should help us further reassure and help business and underpin future decisions

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concerning small employers. For instance, one research project seeks evidence of how employers, including smaller employers, are responding to the Disability Discrimination Act. All this will help to show employers that the Act's provisions can help them recruit and retain the best workers and increase their competitiveness.
It is also important that those businesses are aware of the assistance available, whether it is in a case requiring expert help or simply seeking more routine information. We have already begun the process by improving the Disability Discrimination Act helpline. That provides an increasing range of information on the Act and can help businesses and others by giving advice and helping them to make contact with specialist organisations. It is very gratifying and significant that so many voluntary organisations have joined with us to try to make this system work.
The Employment Service will continue to provide specialist help to employers who want to take on and keep disabled employees. The DRC will also help to ensure that there is appropriate awareness raising and provision of information and advice. As noble Lords will recall, we are also developing a communications strategy in co-operation with the National Disability Council and disability and employer bodies to help ensure that small businesses and others are more informed and aware. That is a very important step on the route to the wider coverage that we all seek through this legislation.
I recognise the great passion of my noble friend for making change in this area. We want to bring down the small firms' threshold further, but I hope that I have made clear why the Government believe that they should take the matter gradually and not in too much of a rush. We feel that we must await the establishment and full involvement of the DRC before we consider further change. Our proposals will ensure that the threshold is monitored and lowered in an effective and appropriate way. I make that pledge to my noble friend. I hope therefore that those noble Lords who have put their names to, and supported, these amendments—my noble friend in particular—will feel able to withdraw them.
Lord Ashley of Stoke: My Lords, I am very grateful for the comprehensive way in which my noble friend has dealt with these amendments. I appreciate the trouble she has taken. She has certainly devoted a great deal of time and trouble to the matter. I wish to make just a few points. The words of the noble Baroness, Lady Hollis, have been quoted in the course of the debate, both from the Back-Benches and the Front-Bench. I am very glad to see that the noble Baroness, Lady Hollis, is with us today. I know that noble Lords will wish to congratulate her on her elevation to the Privy Council today.
Noble Lords: Hear, hear!
Lord Ashley of Stoke: My Lords, notwithstanding the words that have been quoted, I wish to say a few words to the noble Baroness, Lady Blatch. First, I appreciate her support for the amendment. I do not
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know about her reservations. She has called for a survey. I think a survey is irrelevant because small employers should be under no illusions about the requirements of the Act as it would be amended if this amendment were accepted.
My noble friend talked about research. Again, research is helpful, but I do not really think that research is basically relevant to what is a quite simple proposition. My noble friend wondered whether small firms would face the problems of working by trial and error. I do not know where the trial and error comes into it. With the legislation as proposed by the amendment, if we ask small firms simply not to discriminate and only to do reasonable things, I cannot see any great problem. It is a matter of common sense. To build up this into a great problem is something I find very difficult. All the employers I have been in touch with know exactly what is required of their firms and how to deal with the workforce.
My noble friend said that small firms have fears of small mistakes being very costly. That is simply irrelevant. No very costly imposition can be made on small firms because the Act says, "only reasonable accommodation. "So by definition very great costs will not be imposed on them.
Nevertheless, my noble friend is clearly willing and anxious to help. I warmly appreciate that. I shall therefore seek to withdraw my amendment. I look forward to further discussions on the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Schedule 1 [Constitution et.]:
Lord Ashley of Stokehad given notice of his intention to move Amendment No. 27:
Page 10, leave out lines 16 and 17.
The noble Lord said: My Lords, with this amendment, I wish to speak also to Amendment No. 28. Amendment No. 27 is a manuscript amendment. The reason for that is that I made a mistake when I originally tabled the amendments. The amendments provided that the first appointment of the chairman of the commission should be a disabled person. The manuscript amendment says that the chairman of the commission shall be a disabled person.
The Deputy Speaker: My Lords, I am sorry to interrupt the noble Lord. I think Amendment No. 28A is the manuscript amendment. We are now dealing with Amendment No. 27.
Baroness Blatch: My Lords, I do not have a copy of any manuscript amendment at all.
Lord Ashley of Stoke: My Lords, I moved the amendment in error. I should have moved manuscript Amendment No. 28A.
The Deputy Speaker: My Lords, Amendments Nos. 27 and 28 are not moved.
[Amendments Nos. 27 and 28 not moved.]
8 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke moved manuscript Amendment No. 28A:
Page 10, line 17, at end insert—
("( ) The Chairman of the Commission shall be a disabled person. ").
The noble Lord said: My Lords, I was attempting to explain that I made an error in tabling the original amendment, Amendment No. 28, which stated:
"The person first appointed as Chairman of the Commission shall be a disabled person".
For the information of the noble Baroness, Lady Blatch, and other noble Lords the manuscript amendment states simply:
"The Chairman of the Commission shall be a disabled person".
The object is to avoid the word "first" in relation to the chairman of the commission and indicate that every chairman shall be disabled. That is the requirement of the manuscript amendment.
Undoubtedly, chairman of the commission is a key post. That person will be the commission's leader and figurehead. He or she will have a major influence on how the commission does its work in combating discrimination and implementing equal opportunities for disabled people.
By appointing a disabled person, the Government will send a clear signal to the public; whereas appointing a non-disabled chair will send the message that no suitably qualified disabled candidate can be found in the whole of England, Scotland and Wales, which is a preposterous notion. It is a sad comment on society that this amendment is required, but it is essential. We need time before it can safely be presumed that no nonsensical appointments will be made to the commission or elsewhere.
The unique experience of a disabled person cannot be replicated by a non-disabled person. It confers a striking advantage for this post. The trouble with Amendment No. 30 in the name of my noble friend the Minister is that it makes clear the Government's feeling that a non-disabled person would be acceptable. Otherwise, she would support my manuscript amendment. If we are to be deterred from making special provision because it would give the wrong impression, the Government should logically be opposed to the majority of members of the commission being disabled. Yet the Government accept that.
This amendment is of crucial importance. I cannot conceive of the chairman of the commission not being disabled. It is a unique post dealing with unique problems. I hope that the Government will find themselves able to accept this amendment. I beg to move.
Baroness Blatch: My Lords, I have no bone to pick on this matter with the noble Lord, Lord Ashley of Stoke. However, I hope that a precedent is not being set for us to receive, literally in our seats, a manuscript amendment. On this occasion it is a simple proposal and it has almost the same meaning as the original amendment; so there is very little change. However, in
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the spirit of wanting to be helpful and accept the proposal at this stage, I hope that this incident will not be repeated.
I have tabled three amendments to this schedule, Amendments Nos. 29, 31 and 32. My Amendment No. 29 seeks that any appointed commissioner shall not hold office for more than a continuous period of 10 years. That does not mean that he or she may not be re-appointed at another time, but it limits any continuous period of office to 10 years.
Amendment No. 31 provides that chairmen and deputy chairmen should serve for a period of five years only. Amendment No. 32 seeks to remove the powers of the Secretary of State to make the first appointment of the chief executive.
I suspect that this body will be like many others: it will be set up in shadow form; the chairman will be appointed fairly soon; and deputy chairmen and commissioners will start to be appointed. It seems appropriate that the chairman and the staff who will be gathered around him or her should be empowered to appoint the chief executive. They will ultimately be given that job; therefore there seems to be no reason whatsoever for the Secretary of State to appoint in the first instance. My amendments are to be taken in conjunction with the amendment proposed by the noble Lord, Lord Ashley of Stoke.
Lord Addington: My Lords, one point has occurred to me about the amendment in the name of the noble Baroness, Lady Blackstone. It refers to,
"a person who has had a disability".
The definition I had hitherto used for disability was that it was a condition that one did not get over. It was there for ever. Then I suddenly realised that the noble Lord, Lord Ashley, now has a lesser degree of disability. Are we to congratulate him on his appointment?
Lord Swinfen: My Lords, I intended to raise the same point—though not in relation to the noble Lord, Lord Ashley, because I am sure the Minister will not tell us who is likely to be appointed. But every now and again people have a skiing accident or an accident playing football. They can be in a wheelchair for one, two or possibly three weeks. They have then had a disability. It can apply to almost anyone. It is said that at least one in six of us spends at least some time in a wheelchair.
I strongly support the suggestion made by the noble Lord, Lord Ashley, that the chairman of the commission should be a person who has a disability. I also strongly support the idea that the chairman should not hold that post for more than 10 years, as that could lead to staleness. But as a fallback position I would accept the Minister's Amendment No. 30, provided that at Third Reading she is prepared to remove the phrase,
"or a person who has had a disability".
I do not believe that such a provision would work.
Lord Rix: My Lords, I am in a state of confusion. It seems to me that Amendment No. 30, to be moved by the noble Baroness, Lady Blackstone, in some ways

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contravenes the manuscript amendment moved by the noble Lord, Lord Ashley; yet they are grouped together. It makes it very difficult for some of us to speak to one or the other.
Baroness Masham of Ilton: My Lords, I wish to speak to the manuscript amendment. I very much hope that the first chairman of the commission will be a lawyer. There are some very good disabled lawyers. But disability is so complicated and varied. As one is dealing with so many different issues, particularly in relation to employment, I believe it would be advisable to appoint a lawyer.
Baroness Blackstone: My Lords, perhaps I may begin by commending my Amendment No. 30, which provides for either the chairman or deputy chairman to be a disabled person or a person who has had a disability. I shall address that amendment first and speak subsequently to the manuscript amendment moved by my noble friend Lord Ashley and the amendments tabled by the noble Baroness, Lady Blatch. I welcome the opportunity to explain the Government's position.
We had a useful debate in Committee on the appointment of commissioners. We recognised the concerns expressed by my noble friend Lord Ashley of Stoke and others. The amendments that have been tabled to provide for the appointment of disabled persons to the post of chairman and deputy chairman and the obvious strength of feeling with which they have been advocated have given us cause for serious reflection.
I sought to assure noble Lords in Committee that the Government's concern was that all appointments should be made in accordance with the guidance issued by the Office of the Commissioner for Public Appointments and that the appointments process should be seen to be open and transparent. I also said that it seems inconceivable that disabled persons would not present themselves as the best people for the job of chairman or deputy chairman, or possibly both. That is still the Government's position. I wish to reiterate that.
That said, we understand the desire to secure beyond doubt that someone who has practical experience of disability should occupy a position of influence in the commission as either chairman or deputy chairman. Noble Lords will be aware that we have already provided for the majority of commissioners to be disabled people or people who have had experience of disability. The same phrase is used in that context. We have sought to do so in order to ensure that the commission, as a body, has sufficient breadth of experience and expertise to represent the interests of all disabled people, while at the same time maintaining a balance with the interests of the commission's other key stakeholders.
The noble Lord, Lord Swinfen, was concerned about the definition of someone who had had a disability. It is someone who has been disabled within the definitions of the 1995 Act. They would need to have been disabled for at least 12 months and then recovered. So the example of a skiing accident with someone in a wheelchair for a week would not apply. After much consideration, we concluded that the best way forward
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was to provide for that balance to be reflected in the senior posts for all time, but we also wanted to provide a degree of flexibility.
Lord Addington: My Lords, perhaps I may follow that up. The idea that someone has experienced a disability for a year does not concur with my idea of the definition of a disability. That could be a severe illness and there is a distinct difference between the two conditions. Will the Government try to give more guidance as to where the boundary is? There will need to be new terms of reference for millions who have been living with a disability because it was assumed, at least initially, to be a permanent condition.
Lord Swinfen: My Lords, with the leave of the House, perhaps the Minister will allow me to take up the point made by the noble Lord, Lord Addington. The Minister spoke of someone who had been disabled for a year. It is possible that most of the year would have been spent in hospital as a result of the cause of the disability. Therefore, that individual does not have experience of being disabled outside hospital in the working world.
8.15 p.m.
Baroness Blackstone: My Lords, I shall first respond to the noble Lord, Lord Addington. As I pointed out, the definition is in the 1995 Act, so it is clear.
On the issue of whether someone who had been in hospital for a whole year with a disability was eligible, presumably if they were in hospital for a whole year the disability would be serious. I cannot believe that they would simply jump out of their hospital bed and go into the community without continuing to experience some of the difficulties to which a disability can lead. Perhaps we are worrying unduly about the definition.
I return to what I was saying when the noble Lord, Lord Addington, intervened. We have decided that the best way forward is to provide for a balanced view reflected in the senior posts for all time but with a degree of flexibility. Amendment No. 30 is very similar to that tabled by the noble Lords, Lord Addington and Lord Rix, in Committee. I accept that it is not identical, but it is similar. My amendment differs from that of my noble friend Lord Ashley and certainly from the one that he originally put down in that it provides for either the chairman or the deputy chairman always to be a disabled person or a person who has had a disability.
Since then, my noble friend has decided not to move the first amendment and instead he put down a manuscript amendment. While I understand his wish that the chairman should be a disabled person, I believe that the amendment tabled in my name presents the best way forward. I hope that noble Lords will accept that the Government have listened and responded to the issue and that noble Lords will support the Government's amendment.
Amendment No. 29 from the noble Baroness, Lady Blatch, seeks to ensure that no commissioner, as a result of being re-appointed, serves longer than 10 years

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continuously. Amendment No. 31 seeks to ensure that the persons appointed as chairman and deputy chairman hold office for a fixed term of five years.
I referred earlier to the OCPA guidance. This guidance has been taken into account in drafting Schedule 1. It makes clear that commissioners should expect overall to be in post for no longer than six to 10 years if they have been re-appointed. Clearly, those who are not re-appointed will serve a shorter term. So no one under the schedule as drafted would be expected to serve for longer than 10 years. The vast majority of commissioners would serve for less than that time. I hope that noble Lords will accept my assurance that our intention is to comply fully with the OCPA guidance and that it is not envisaged that any commissioner will ever serve longer than 10 years continuously. There need to be new ideas and new blood on the commission. I hope that the explanation will mean that the noble Baroness will not want to press the two amendments.
In following the guidance of the OCPA, we are providing flexibility for appointments to be made for between two and five years, rather than being constrained to a strict five years as the amendment would require.
The Bill already allows for all the DRC's commissioners, including those who are appointed as chairman and deputy chairman, to be appointed for up to five years. In addition, they may be re-appointed. That is consistent with our determination to create a commission which is not only independent but is also able to operate flexibly. To appoint a chairman and deputy chairman rigidly for a strict five-year period would be inflexible and would not be in the best interests of either the commission or its key stakeholders.
My noble friend Lord Hunt of Kings Heath explained in Committee why, for practical reasons, the Government wish to avoid a situation where the chairman and deputy chairman are forced to stand down at around the same time during the same year for no other reason than that the Secretary of State had to appoint them for a fixed term, as required by the amendment. I am also conscious that the circumstances of some candidates for commissioner posts might preclude them from accepting an appointment or re-appointment were it to run, as this amendment would require, for a strict five-year period. The commission and its stakeholders would suffer, therefore, by losing the services of people who would otherwise be able to make a valuable contribution. While the Government's intention will be to make the appointments for more than two years in the first instance, we wish to be able to exercise a degree of flexibility where circumstances require it. I hope that noble Lords will agree that to appoint the chairman and deputy chairman for a strict five-year period would not be in everyone's best interests.
The noble Baroness also tabled an amendment which seeks to remove the provision to allow the Secretary of State to appoint the first chief executive of the commission. I stress that the provision is for the appointment of the first chief executive. It would be for
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the commission to appoint the subsequent chief executives. Such practice is the convention in non-departmental public bodies.
It is important that the first chief executive has a role in shaping the commission before it opens for business. He or she must also be appointed early enough to take part in that process. The commission will hardly be in a position to undertake that function at that early stage, but to delay such an appointment until many or perhaps all of the commissioners are in place and sufficiently settled in to run an appointments exercise means that the chief executive cannot make a contribution, certainly not a full one, to the establishment of the commission. It is likely that the absence of a chief executive will also delay its establishment, which no one who has taken part in this debates wants. To allow the Secretary of State to make this appointment will overcome these practical difficulties. I reassure the noble Lord that the Secretary of State will consult fully the newly-appointed chairman on the appointment of the chief executive. I hope that in those circumstances the noble Lord will agree to withdraw his amendment.
Lord Ashley of Stoke: My Lords, my noble friend teased me about not pursuing my first amendment, but she has not listened to my original speech. I said then that I had made a mistake. I was horrified to note the word "first" in the amendment. Clearly, I do not want an able-bodied chairman and that is the purpose of this manuscript amendment. It was after I realised that that I tabled the manuscript amendment.
I appreciate the very real advance that my noble friend has outlined. There is no doubt that she is trying to accommodate the views of the House in that way. The problem is that under my noble friend's formula it is possible for the deputy chairman to be disabled and the chairman to be able-bodied. That is the complete opposite of what we want. I do not want the chairman to be able-bodied, as set out in the manuscript amendment; I want the chairman to be disabled for all the reasons that I have explained.
We have arrived at an impasse. All I can say is that at a later stage in another place this matter will be pursued very vigorously. While I appreciate the advance that has been made by my noble friend, the phrase that comes to mind in this context is "it ain't enough". I hope that my noble friend will feel able at some stage to accept the principle of the amendment that every chairman of the commission should be disabled. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 30:
Page 10, line 35, at end insertx2014;
("(2) The Secretary of State shall exercise his powers of appointment under this paragraph with a view to securing that at least one of the persons holding office as chairman or deputy chairman is a disabled person or a person who has had a disability. ").
On Question, amendment agreed to.
[Amendments Nos. 31 and 32 not moved.]
Lord Rix Lord Rix moved Amendment No. 33:
Page 11, line 19, at end insert—
(". Where appropriate, Commissioners, staff and advisers of the Commission may appoint personnel for the purposes of personal advocacy or communication support. ").
The noble Lord said: My Lords, it is rather late in the evening. I also have a reasonable idea as to the response that I shall receive from the Dispatch Box. Nevertheless, I should like to say a few words in moving this amendment if only perhaps to soften the Minister's heart and make her response even more generous.
In principle, I hope that noble Lords share my view that people with learning disabilities, sensory impairments or mental health problems should be able to play an active part in the commission and put themselves forward as commissioners. In practice the job may be impossible for a commissioner with a learning disability unless appropriate support is provided in assisting that commissioner in the fulfilment of his or her duties. Working with the commission will involve dealing with some highly complex legal material and meeting those who are, unfortunately, resistant to advancing the civil rights of disabled people.
The principle of this amendment is not about providing commissioners with benefits in kind, such as travel expenses, but rather about ensuring that no one is prohibited from playing his or her part in the role of the commission on the grounds that the commission cannot afford to support that individual's involvement. In practice, this amendment may not achieve that aim, but I am sure that with support of the principle the Minister can find the political will to charge her officials to draft a suitable amendment, and a suitable consequential amendment, to cover the appointment of additional commissioners under Schedule 2.
The Minister has been kind enough to enter into correspondence on this issue and indicated her readiness to confirm that the commission will be able to provide the kind of support to which I refer. For that I am most grateful. It seems that we are nearly there. However, the last mile is always the hardest and this will be no exception. But perhaps the Minister will go one step further and confirm that the commission will guarantee the principle that no one will be prohibited from taking on a role with the commission on the basis that his or her support requirements are too costly. I beg to move.
Baroness Darcy de Knayth: My Lords, I warmly support this amendment. I should like to refer to three groups who very much require support if they are to become commissioners. It is important that they get this opportunity because they are very much cinderellas for very diverse reasons. First, my noble friend mentioned those with communication difficulties, for example deaf people. Users of British sign language, of whom I believe there are 64,500, are very much excluded from lots of activities and their needs are ignored. It is very important to have a commissioner who uses sign language. Secondly, there are people with mental disability. Thirdly, my noble friend mentioned people with mental illness. This is a very common problem. One in four people may have a mental illness. Some people hold down
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jobs as directors of social services, company directors and so on, but others find that to explain a gap in their CVs as time spent in prison rather than in a psychiatric hospital can increase their chances of being offered a job, which I find terrifying. I made reference to this matter at Committee stage. I repeat it because I should like to clear up one matter that arises in Hansard on 4th February at col. 1679. I apparently made reference to people with a mental disability who had this difficulty and explained gaps in their CVs as time spent in prison. I meant to refer to people with mental illness. I do not know whether that arose because of fuzzy diction or thinking, but I should like to clear up that misunderstanding. I warmly support my noble friend's amendment and hope that the Minister will give an encouraging reply.
Lord Addington: My Lords, the idea of allowing someone with a disability to have support staff to take part in this commission must be looked upon with at least a degree of sympathy. Basically, we are considering here giving these individuals sufficient support to allow them to do the job properly.
Lord Hunt of Kings Heath: My Lords, the amendment tabled by the noble Lord, Lord Rix, and the noble Lord, Lord Swinfen, seeks to ensure that commissioners, staff and advisers of the commission are able to appoint advocacy and communication support workers where appropriate. I recognise and support the intentions behind the amendment. I have no argument with the noble Lord, Lord Rix, on this matter.
In carrying out its new role and functions the disability rights commission will strive to operate as a model of good practice. One of the most obvious ways in which it will have the opportunity to demonstrate this will be the way in which it provides support for its disabled commissioners and staff. I can assure noble Lords, therefore, that this amendment is unnecessary. Clause 2 gives the commission wide-ranging powers, and Schedule 1, paragraph 10(1)(b), establishes a wide power for the commission to appoint its own staff, only subject to the approval of the Secretary of State in terms of their numbers, and conditions of employment. The width of these powers extends to providing advocacy and communication support for its disabled commissioners and staff, and indeed goes beyond that. For example, the Bill as drafted currently allows the commission to provide support to additional commissioners and to provide types of support that may be necessary beyond advocacy and communication.
To specify on the face of the Bill that support should be provided to particular people for particular purposes might serve to limit the commission's powers. My speaking note advises me to quote the Latin phrase used in Committee by the noble Lord, Lord Renton. Alas, I am not up to the task, but the translation is that if one expresses one thing one excludes another or others. I believe that it applies here equally. In view of that clarification, I hope that noble Lords will not press the amendment.

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Perhaps I may answer a specific point raised by the noble Lord, Lord Rix. It would be for the commission to decide how to spend its budget. In that sense, it is not a matter for the Government, but I cannot see any way in which it would be reasonable for the commission to refuse to meet the necessary support costs of a commissioner with, say, learning disabilities.
Lord Rix: My Lords, there is a slight response to the Minister's last statement. At MENCAP we had as a member of the national council a young woman with learning disabilities. She was an active and good member of the national council but was unable to attend any sub-committee meetings because of the costs involved and because her employers were unable to release her to attend during the working week. She could attend national council meetings on Saturdays, but not sub-committee meetings during the working week. Considerable additional costs would have been required to pay the employers to allow her to come to London and take part in committee activities. Will the commission be capable of meeting such expenses because the situation must apply to more than one of its members?
Lord Hunt of Kings Heath: My Lords, ultimately, that is a matter for the commission. However, within its budget of £11 million, it would be reasonable to expect it to meet the costs of providing for the needs of disabled commissioners and their staff.
Lord Rix: My Lords, with that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Schedule 3 [Formal investigations and non-discrimination notices]:
Baroness Blatch Baroness Blatch moved Amendment No. 34:
Page 16, line 7, at end insert—
("(5) Where the Commission refuses to receive oral representations under sub-paragraph (4), it shall give reasons for that refusal in writing to the parties concerned. ").
The noble Baroness said: My Lords, I return to the issue of oral representations in order to try to press the Minister once again to consider that reasons should be given when a refusal is made. If, as I suspect, the Minister rejects my plea, perhaps I may make another suggestion to which he might respond.
In Committee, the noble Baroness, Lady Blackstone, said:
"I reassure the Committee that the Government fully expect that almost invariably it will be right for the commission to give its reasons and that in 99.9 per cent. of cases it will do so". —[Official Report, 4/2/99; col. 1686.]
If that is the case, will the Minister accept at least the suggestion that the presumption should be in favour of giving reasons when a refusal is made but that exceptions exist for such a refusal? I believe that it should appear on the face of the Bill that the
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presumption should be in favour of giving reasons why a person cannot make an oral representation. I beg to move.
Lord Hunt of Kings Heath: My Lords, Schedule 3 sets out the detailed procedure to be followed by the Commission in conducting formal investigations and issuing non-discrimination notices. Paragraph 8 prevents the commission issuing non-discrimination notices unless it has first notified the person concerned of its reasons for doing so and given him or his representative an opportunity to make written and oral representations.
Paragraph 8(4) allows the commission to refuse to receive oral representations made on behalf of the person concerned by someone whom it has reasonable grounds to consider unsuitable. I have noted the arguments put forward by the noble Baroness, Lady Blatch, to have on the face of the Bill a provision requiring the commission to give its reasons in writing if it refuses to receive oral representations, but I continue to believe that such a provision is unnecessary.
As was said in Committee by my noble friend Lady Blackstone, both the Sex Discrimination Act and the Race Relations Act give the other equality commissions similar powers to refuse to receive oral representations without requiring them to give their reasons for a refusal in writing. So far as I am aware, there has been no suggestion that the system has failed to operate satisfactorily. I believe that it would be wrong to impose a requirement on the commission to give reasons in writing for refusing to receive oral representations.
It is best to trust the commission to exercise its judgment in a fair and balanced manner. There is nothing to prevent the parties concerned specifically requesting in writing the commission's reasons for refusing to receive oral representations and, as my noble friend suggested in Committee, it is most unlikely that the commission would refuse to do so in such circumstances. I noted the noble Baroness's suggestion that there should be a presumption in favour of releasing that information. I should like to give that further consideration and return to it at a later stage.
Baroness Blatch: My Lords, I am deeply grateful to the Minister. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 35:
Page 17, line 6, at end insert—
("( ) The Commission shall arrange for the removal of a non-discrimination notice from the register when the action required by the notice has been complied with. ").
The noble Baroness said: My Lords, if the disability rights commission is to keep a register of non-discrimination notices issued to companies, as set out in the Bill, it ought also to be required to record and/or note when the action required in the notice has been taken.
It appears inequitable if a company's name can appear on a register as having failed or breached its obligation under the law when it may have acted unwittingly and

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readily found a remedy to meet its obligations. There should be an opportunity for its name to be removed from the register.
I remember similar tension arising in respect of the land pollution legislation under which people were recorded as being the owners of polluted land. After they had taken all the necessary action to remove the pollution there was tension about being removed from the register. Once on the register, companies will be there for all time unless there is a requirement for the commission to remove their names. I hope that the Minister will give serious consideration to the amendment. I beg to move.
Lord Swinfen: My Lords, this is a reasonable suggestion; otherwise, a company's name could appear on the register 20 years later when its management and policies had changed and for the past 19½ years it had behaved perfectly properly. It is unreasonable that a company's name should remain permanently on the register; it may, however, be reasonable for a period of, say, two or three years. Even if we are unwise enough to earn penalty points on our driving licences, after a time they are expunged and we can go forward with a clean licence. We all should have the opportunity of redemption.
Baroness Darcy de Knayth: My Lords, I support the amendment. It is sensible.
Lord Addington: My Lords, I believe that the noble Baroness, Lady Blatch, has a point.
Lord Hunt of Kings Heath: My Lords, this has been a short but interesting debate. Schedule 3(13) requires the DRC to maintain a register of non-discrimination notices which have become final and to make the register publicly available. The purpose of the amendment is to require the commission to arrange for the removal of a non-discrimination notice from the register when the action required by the notice has been complied with.
As the comments of noble Lords would suggest, on the face of it the principle behind the amendment would seem to be reasonable. However, some fundamental issues must be dealt with. For example, first, would it be appropriate to set a particular period of time after which the non-discrimination notice should be removed from the register? The Sex Discrimination Act and the Race Relations Act allow the existing equality commissions to monitor compliance with a non-discrimination notice for up to five years after it had been issued, and it is intended that we should seek to make a similar provision for the DRC through regulations. Would five years be an appropriate time? If there is still action required by the non-discrimination notice with which the company has not complied after five years, would it be reasonable to expect the commission to undertake a further investigation and issue a further notice?
Secondly, when should the calculating period start? For example, should it start from the point at which a non-discrimination notice becomes final or should it
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start from the point at which the action required by the non-discrimination notice has been complied with and then cover a period during which the company would be expected to demonstrate a clean record? When would it be said to have complied if there is indeed a five-year monitoring period? Would it be from the end of that period or at some other point during that period?
I am sympathetic to the idea behind the amendment, but it requires further consideration. I should be interested in the views of the noble Baroness, Lady Blatch, on the points which I have raised, which I should be happy to consider before later stages of the Bill.
Baroness Blatch: My Lords, there are not many later stages of the Bill. We have only one more opportunity to discuss the matter. The Minister asked some very reasonable questions about what the amendment would mean in practice. Perhaps he will accept the principle that where a company has complied immediately with the notice and has lived through the monitoring, then it should have its name removed. After all, criminals have their names removed from the register. They can claim not to have a criminal record after a period of time. If someone who receives a caution does not offend within a certain period of time, that disappears also. It seems fair that that should happen also to a company which has been entirely compliant.
I accept that there are practical questions in relation to whether it should be a fixed period and, if so, what it should be and when it should start. Those matters could be dealt with in secondary legislation if the principle were accepted on the face of the Bill and if a power were made to allow the commission to remove a name from the register as long as it met the criteria laid down in secondary legislation.
I am grateful to the Minister for saying that he will think about this issue between now and the next stage. I should be grateful if he will indicate his intentions before then so that I am in a position, if necessary, to table an amendment to deal with the matter. However, at present, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Code of Practice on School Admissions
8.45 p.m.
Baroness Blatch Baroness Blatch rose to move, That this House declines to approve the draft Code of Practice on School Admissions laid before the House under Sections 84 and 85 of the School Standards and Framework Act 1998 on 5th February 1999.
The noble Baroness said: My Lords, I rise to pray against the code of practice which is before the House and which is due to come into force fairly soon.
The noble Baroness, Lady Blackstone, has reminded the House on many occasions that one of the principles behind the Government's legislation is that there should be greater clarification, transparency, simplification and, in particular, a lessening of the burden on schools.
I have looked at this code of practice. Staff of schools are in despair both about its interpretation and the work which will have to be undertaken in order to comply with the code. The code of practice has to be read in conjunction with a very large number of pieces of legislation. For example, in paragraph 1.2 account has to be taken of the Code on Admission Appeals. I ask the noble Baroness when we are likely to see that. In paragraph A. 10, account must be taken of the education (relevant areas) regulations 1998. In paragraph A.11, teachers have to understand, read and take into account the Education (Determination of Admission Arrangements) Regulations 1999 and, in paragraph A. 19, they have to take into account, understand and read the Education (Objections to Admission Arrangements) Regulations 1999. In paragraph A. 42, they have equally to take into account and understand the Education (Infant Class Sizes) (Transitional Provisions) Regulations 1998. In paragraph A. 58, they have to refer to the Education (Grammar School Ballots) Regulations 1998 and in paragraph A. 70 the Education (Aptitude for Prescribed Subjects) Regulations 1998. In paragraph A. 76 reference is made to the Disability Discrimination Act 1995 and in paragraph A. 77 there is reference to the Education (School Information) (England) Regulations 1998.
The people who will have to interpret this code of practice are very busy head teachers. They will have to do an enormous amount of work and they almost need the qualifications of a lawyer to do all that cross-referencing, and the Government have not thought fit to produce a code which makes all that self-explanatory.
At page 4 of the code there is the heading:
"Applications: common forms and timetables".
That paragraph begins with the sentence:
"The local admissions process should be as simple as possible for parents".
I have said already how complex and difficult this matter is, but of course it is important that it should be simple for parents. I doubt whether parents will be able to get their minds around the list of regulations which I have read out. But it is important that it should be as simple as possible and easy to execute for schools and their staff. Therefore, my first objection is the complexity and the burden on schools which will have to make sense of the code and convey it to parents.
At paragraph 5.9, under the heading "Primary schools" it states:
"Academic selection should not be used to decide entry into primary education".
There is at least one school in the country, the Oratory School, which takes children into its prep department at the age of seven. On the basis of the criteria used to determine whether a school is a primary school, a secondary school, a GM mixed or infant school, those children are considered to be children attending a secondary school. It is true also that those children are interviewed for entry into the prep department, and it is true also that the pupils need a particular level of ability to cope with not only the normal school curriculum
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but also the additional specialist school curriculum. I wonder whether the noble Baroness will say what status paragraph 5.9 has in relation to a school such as the Oratory with a prep department as part of the school.
Paragraph 5.25, which is concerned with interviews, states:
"Schools or admission authorities should not interview parents as any part of the application or admission process".
When recruiting children for a specialist school, it is important that there is some form of interview and assessment of a child's aptitude for a particular specialist subject. It is almost impossible to make the distinction between aptitude and ability when one is talking about science and technology or the more technical subjects. It would be helpful to have some clarification as to how that will work in practice.
Paragraph A. 41 is concerned with standard numbers and flexibility. It would be helpful if the Minister were able to tell us first about the sixth forms. Many schools not only keep their own young people in a sixth form but they also take in pupils from other schools. There is at least one school—I cannot remember its name—in the Hammersmith and Fulham authority area—which has no legal basis at all. I do not know whether that has ever been resolved. It certainly had not been resolved at the point at which I left the DfE. The lawyers were still crawling over the matter. It has no legal basis. It accepts children after the age of 16 and it accepts them from beyond the local authority area. It would be helpful to know from the noble Baroness how one deals with standard numbers in that case.
As regards sixth formers, it is quite common for schools to interview students for sixth forms. They have to do that. If young people wish to take particular subjects, it is almost common practice, even within a school where a young person moves from the year below into the sixth form in the same school, for a judgment to be made by interview with the young student and often with the family, on whether the young person has the ability and the aptitude for taking particular subjects in the sixth form. I wonder what the Government say about that. The code is not very clear on that subject.
My final point is the enormous confusion, particularly in the London area and the more urban areas such as Manchester, Leeds and Liverpool, where schools take from a very wide area. One has only to think of our own Prime Minister who sends his children to school across LEA boundaries, along with many other people. If the relevant area is the whole of London how much time is going to be taken up by an individual headmaster or headmistress and the staff in consulting, as they must do under the law, with the relevant area if it is as wide as Greater London? It would be helpful to have the noble Baroness's comments on each of those points. I beg to move.
Moved, That this House declines to approve the draft Code of Practice on School Admissions laid before the House under Sections 84 and 85 of the School Standards and Framework Act 1998 on 5th February 1999. —(Baroness Blatch.)
Earl Russell: My Lords, when I was reading the papers for this Motion I was reminded of a correspondence in the Times Educational Supplement in 1984 between Sir Alfred Sherman and Sir Keith Joseph, as he then was. They were discussing the failure to introduce a voucher system for school admission. Sir Alfred, in his usual pugnacious style, regarded that as a result of pernicious left-wing influence among the civil servants. Sir Keith, one of the most honourable men I have known, said that, first, they had convinced him by sheer rational argument that a complete market with a voucher system was incompatible with a universal service and, secondly, even if they had been wrong about that, he was responsible. He had taken the decision and Sir Alfred should have attacked him and not the civil servants. It was one of the more admirable letters that I have read.
But this potential clash between a market and a universal service is something which underlies a great deal of the debate tonight. We have on the one hand a sort of global market in schools set up by the Greenwich judgment. I have not forgotten the visit to Orpington during the last general election and listening to the problems caused by the number of Bromley children who could not attend any school to which they could travel because all the places had been taken up by people from outside the borough. How far one can have a global market without having any losers is a paradox which I do not believe market theory altogether solves.
We have a comprehensive system plus selection. That is another paradox. We have partial selection, which is a rather mulish form of paradox. It has a distinctly hybrid quality about it. For example, we have one school in the London Borough of Sutton which is partially selective. It is taking people from as far away as Brighton. That is setting up a sort of market in schools which is causing quite considerable difficulties for school admissions in Sutton. We wonder why it is insisted that interviews are still to be permissible for church schools, especially since the Church of England Board of Education, which my honourable friend has consulted, said that the Church saw no particular need for it and would be quite happy to let it go.
Again, there is a paradox as regards admissions in keeping up a combination of a universal school service plus the autonomy of each individual local school. I remember discussing these paradoxes during a number of education Bills introduced into this House by the noble Baroness. I am sure that she remembers them. We suggested then, as we do now, that moving away from a local authority responsibility for admissions was going to create a great many problems about where responsibility lay.
We could not have exactly what we wanted—one very rarely can in this world. On our Benches, we have reached a compromise with the Government that if we could not have a local authority responsibility for
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admissions, then local authority schools should have the same sort of autonomy as grant-maintained schools so that there should be a level playing field. We have agreed that compromise and we hold to it.
However, looking at these paradoxes I cannot help but be reminded of the description of the religious policy of Henry VIII: that he was like one who would throw a man from the top of a high tower and bid him stay where he was when halfway down. We have had all these principles of school autonomy, markets and so forth introduced into the middle of what is still a universal service. I do not believe that they mix. I do not see that anyone on any Bench is yet ready to tackle the task of bringing logic back into the system. Attempts to bring logic back into education have always tended to involve imposing one particular philosophy which has not met acceptance from the next government. It is no wonder that people in education are suffering from what the noble Earl, Lord Baldwin of Bewdley, once described as "innovation fatigue".
While we are thinking about these subjects, I also hope that thought will be given to the question of how much spare capacity we need in the school system. There is a casual reference at the beginning of the code of practice to reducing capacity in the name of efficiency. I hope that it will not be quite the same efficiency that has been applied to reducing the rolling stock on Virgin Railways, for example. There is a point beyond which efficiency is not efficient.
I also hope that some thought will be given to the implications of the Rotherham judgment, which says that a parent who has expressed a preference, even if it is the second, third, fourth or umpteenth preference, is to take priority over a parent who has not. That again is making it hard for people to gain admission to their own local schools.
I also believe that we need, and have always needed, to think about education admissions in the context of transport. That is something where joined-up government has yet to happen and I look forward to it. Effectively, the range of choices available to pupils is the range of choices between schools to which they can get transport. It is a particular problem in the: London Borough of Bromley where the effects of the Greenwich judgment have been very severe indeed.
The noble Baroness pointed out that all this is extremely complicated to administer. So it is; I agree with her. The question is: first, how did we get here? I believe that the noble Baroness made some contribution to that. The second question is: how do we get out of it? If we were to decide that the system we have is now too hybrid to be really workable, which way are we going to alter it? Are we going to continue to have a market within a universal service? If not, the Greenwich judgment will have to be repealed. If the answer is yes, then many of these problems will continue. Are we going to have selection continuing within the comprehensive system? If we are the Sutton problems will continue.
At present I do not see any general political will or any consensus emerging which will allow us to provide any workable and potentially durable solution to these

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problems. Until we do I am not at all certain that the mess can be made any tidier than it is now. It is difficult. It is not appropriate for teachers to have to understand all these various regulations to which the noble Baroness referred. That always was our case, as I have argued from these Benches before, in favour of local authority control of admissions rather than complete autonomy for every school.
As that does not seem to be a practical possibility, and as we do not intend to reopen a compromise that we have honourably and seriously reached, I do not want to make any further criticism but simply to suggest that we have problems and we must all think of a solution. Yes, it is difficult, but we have arrived here and we all have to take a share of the responsibility. The house is glass; the glass needs mending; but I do not think that we should be throwing stones.
9 p.m.
Baroness Blackstone: My Lords, the Government plan to bring this new admissions code of practice into force on 1st April. It will apply to admission arrangements for primary and secondary schools for September 2000 and beyond. The purpose of the code is to give vital practical guidance to local education authorities and schools. I should make it clear at the beginning that that guidance is not for parents, and, in turn, local education authorities will be asked to provide adequate advice and information for parents. The code will include five sets of regulations which are required to implement the new school admissions framework.
The five sets of regulations currently before Parliament are due to come into force from 1st April 1999 and it is crucial that the admissions code comes into effect at the same time. The code will have statutory force; so local education authorities, schools which are admission authorities, the adjudicator and admission appeal panels will have to have regard to the guidelines in the new code. In addition to the requirement—in initial year regulations which have been in force since 6th January this year—for them to consult upon and determine their admission arrangements by 1st April and 1st May 1999 respectively, they also need to make other essential preparations over the coming weeks for September 2000 admissions. The code must be in place from our planned date of 1st April to give those involved in the admissions process sufficient time to ensure that all their arrangements for school admissions from September 2000 can benefit from the guidance it contains.
The noble Baroness, Lady Blatch, and the noble Earl, Lord Russell, have asked a number of specific questions. They have also made one or two more general points. I shall respond to the general point made by the noble Baroness, Lady Blatch, that such arrangements are too complex for parents and schools to follow. Perhaps I do not need to explain this as I believe the noble Baroness is fully aware of it, but the arrangements are not for schools as a whole; they are for admission authorities; that means LEAs and a small minority of schools, those that are grant-maintained and will become foundations and voluntary-aided schools. We do not need to worry
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that all the different regulations that the noble Baroness read out are something that we would expect parents to try to follow.
The code sets out—fairly clearly, I think—for admission authorities what are the arrangements. Moreover, the Government have consulted on the code and have received many responses, the vast majority of which are extremely positive. The noble Baroness's suggestion that the schools are "in despair"—I believe she used those words—does not in any way bear out what the Government have found on the basis of that consultation.
The new framework should not place onerous burdens on schools. For LEA and voluntary-controlled schools where the LEA is the admissions authority, there will be no additional burdens, as consultation should already have taken place between the LEAs and their schools over proposed admission arrangements. The foundation and voluntary-aided schools will be required to consult other admission authorities in the area. I am now talking about the consultation burden on schools. Where a local admissions forum is established to form a consensus on admissions arrangements at a local level, LEAs will be responsible for ensuring that the forums receive the service support that they need.
The noble Baroness asked when the code of practice on admissions appeals will be available. A draft of the admissions appeals code of practice will be sent out for consultation after Easter. A final version of the code will be laid before Parliament in June and the code will come into effect, subject, of course, to Parliament, on 1st September 1999.
The noble Baroness also asked about the London Oratory School. Special school provision is covered by the existing partial selection regime referred to in paragraph 5.11. However, if there are objections to any of the London Oratory School's arrangements, they can be made to the adjudicator either by the local education authority in the area or by parents.
The noble Baroness also asked about the admissions authorities which admit pupils from other schools into sixth forms. Such authorities should publish an admission number for admissions from outside the school. They are required to publish an admission number at each normal year of entry.
The noble Baroness also asked about the 1998 Act permitting selection by ability to sixth forms, which is Section 92(2)(c). Again, such arrangements will be subject to statutory consultation and objection may be made to the adjudicator.
The noble Baroness mentioned possible confusion in a large area such as London. It is unlikely that any LEA will set a relevant area as wide as the whole of London—and it is the LEA, not the school, which sets the relevant area. I should have thought that in London it would be much more likely that a relevant area would comprise a London borough. In London, the boroughs are the LEAs. However, they will, of course, have to take into account the point that the noble Baroness rightly made that quite large numbers of parents in London do not send their children to school in the borough in which they live but to a neighbouring

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borough. That is particularly likely where they live close to a borough border. Local education authorities are well aware of the burdens on schools and would not want to set a relevant area that is much too wide.
Both the noble Baroness and the noble Earl referred to partial selection. The noble Earl mentioned selection within a comprehensive system. Our policies are well known and we shall deliver our commitment on this. We want to move forward, whereas I think—and I believe that the noble Earl suggested this—that there is a sense in which the Conservative Party wants to cling to some of the existing forms of selection which we believe are inequitable. We want a system that works in the best interests of all children and parents, not one that is confusing and divisive or which in any way restricts parental choice.
The noble Baroness also asked about ability and aptitude. Again, a modern education system should deliver high standards for all children within a framework which is sufficiently diverse to meet their individual needs. That is why the new admissions framework allows schools with a specialism in one or more prescribed subjects to have admission arrangements which allow that school to give priority to up to 10 per cent. of pupils on the basis of their aptitude for that specialism.
There is a distinction between "aptitude" and "ability". Indeed, the previous administration recognised that distinction. Aptitude has nothing to do with prior or current educational attainment. The code makes it clear that children who will be able to benefit from teaching in a specific subject or who have demonstrated a particular capacity to succeed in a subject can be regarded as having an aptitude for that subject. The aim is to enable the particular skills of a child to be matched with the particular strengths of a particular school. We want children who have the capacity to succeed in a particular area to have the opportunity to benefit from the facilities which particular schools with specialisms might have.
The noble Earl asked about the Greenwich judgment. It has never been possible to guarantee every child a place at the school of their choice, as I am sure that the noble Earl understands. Popular schools will sometimes have more applicants than available places. Reversing the Greenwich judgment would not alter the fact that popular, over-subscribed schools would not be able to admit all their applicants. Many parents would find it difficult to understand the rationale behind the resurrection of an artificial barrier to their choice. They would not see the justification behind the fact that although they live next door to a school, they cannot gain admission to it for their child because they are on the wrong side of the LEA boundary. There is no general body of support—
Earl Russell: My Lords, perhaps I may make a clarification which I should have made earlier. I was not intending to refer to cases of people who live close to a borough boundary; I was more concerned with long-distance migration.
Baroness Blackstone: My Lords, I am grateful to the noble Earl for clarifying what he meant. Our admissions
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framework ensures that LEAs consult with neighbouring education authorities about their admission arrangements where pupils may be travelling rather longer distances across LEA boundaries. That consultation will enable the LEAs to work together to ensure that admission arrangements work in the best interests of all parents in areas affected by substantial cross-border movement of pupils.
The noble Earl also asked about the Rotherham judgment. Paragraph A. 28 on page 18 of the draft code provides guidance on that judgment. Sixth-form admissions are covered in paragraph A. 41. I believe that the noble Baroness, Lady Blatch, referred to that.
The noble Baroness and the noble Earl asked about interviews. The code makes it absolutely clear that interviews should only be conducted under limited circumstances. Church schools may carry out interviews but only in order to assess religious or denominational commitment. Boarding schools may carry out interviews to assess the suitability of a child for a boarding place. We recognise that there is a difficult balance to be struck.
Earl Russell: My Lords, I am most grateful to the noble Baroness for giving way again. Can she explain what evidence the church schools can get on commitment from an interview that they could not get from a letter from the local vicar?
Baroness Blackstone: My Lords, church schools requested that they should continue to be able to interview parents about denominational commitment and this, after considerable thought, the Government conceded. Clearly, this is something we shall want to monitor to see how it works in practice. The Churches do not take quite the same position as the church schools and have suggested that it is perhaps possible to find other ways of determining that commitment. For the time being we have recognised that this is an issue about which church schools feel strongly and have therefore made the concession.
I have tried to answer all the questions. I may have failed to succeed, but at this late hour perhaps it makes more sense if I read what the noble Earl and the noble Baroness said, and if there is anything I have failed to pick up on, perhaps I can write to them.
Baroness Blatch: My Lords, I shall be grateful if the noble Baroness writes with clarification on a number of points because many of the answers leave even more questions in the air.
The code itself is very ambiguous. The noble Baroness says she has read it carefully. I have read it very carefully too. There are a number of areas where there is confusion in the way it is written between the admissions authority and the local education authority. The noble Baroness referred to LEAs being the main body. There are many schools which will be their own admissions authority and they are headed up by head teachers and their staff. They will need to understand the complexities of this code of practice and all the regulations with which it is cross-referenced, just as the LEAs will. Any school within an LEA needs to

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understand that too. The idea that schools remain blithely ignorant and only the LEA understands is unacceptable. It is the school that has face-to-face contact with a parent who is aggrieved for one reason or another and has to give them an explanation. So the idea that schools will not need to understand or bother their pretty little heads about the code, nor indeed the parents, I am afraid I simply do not accept.
The noble Baroness also said that the LEAs set the relevant area. I accept that too. When a school such as the Oratory and many other schools in London take from a London-wide area—from as far away as Islington as I mentioned earlier—is the noble Baroness actually saying that there is no requirement on that school, which will be its own admissions authority, to consult parents in the area from which it has traditionally taken children; that is, from places as distant as north London and the extremes of the southern London boundary? It would be helpful if the noble Baroness could deal with that matter in the letter.
The noble Baroness said that the draft paper for appeals will not be out until after Easter and will not be ready for presentation to Parliament until June. That is awfully late. It leaves a matter of a few weeks for the schools and the education authority to get to grips with a very sensitive area of activity; that is, the appeals system, which could well be a factor they will be dealing with in September.
The code of practice was meant to make things easier and clearer for parents. I am afraid that it does not. Many of the answers we have heard tonight will not help them either.
My final question concerns interviews. I return to the prep department of the Oratory. Is the noble Baroness officially saying that it is deemed to be a selective school and, under the paragraph to which the noble Baroness referred me at the end of Annex A, any degree of selection that was deemed to be in place at the time of the passing of the Act shall continue? In other words, it is selective and therefore can continue to be selective and interview for selection. It would be helpful to have clarification. I think it is deemed to be a secondary school and therefore the primary school paragraphs will not apply to it.
The noble Baroness did not refer to the necessity for all schools to interview for suitability for entering into the sixth form and taking specific courses. It has been common practice throughout the country. I suspect it will be difficult to continue without it and it will be more pertinent in the context of the code for those schools which take sixth formers from outside their own school catchment area. That applies, of course, to many sixth forms because an increasing number of schools throughout the country over recent years have opted not to have a sixth form and therefore there have grown up sixth form colleges or a school with a sixth form that draws from a wider area. It would be helpful also to have some clarification of the processes of interviewing, selection and recruitment into what are ostensibly sixth form colleges but which, for the purposes of designation, are in fact schools.
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The noble Baroness did not refer to the one school in Hammersmith and Fulham which is well known to her department as having no legal basis. Perhaps she can say, first, what is the designation of that school and, secondly, how the code impacts on that school and that LEA.
I shall seek to withdraw my Motion, as is the convention, but I am extremely dissatisfied with the code. It was, I believe, dismissed lightly as not mattering to teachers and head teachers. I believe it will cause them great grief. We shall see that only when the code of practice is up and running. I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.

Rating (Valuation) Bill
9.21 p.m.
Baroness Farrington of Ribbleton: My Lords, on behalf of my noble friend Lord Whitty, I beg to move that this Bill be now read a second time.
It is a short Bill which concerns the valuation of properties for national non-domestic rates. Its purpose is limited and concerns a matter of principle. I cannot however pretend that the subject matter is straightforward. That is reflected in the length of my opening speech, for which I apologise to the House.
The Bill is necessary following a decision of the Lands Tribunal in a rating valuation case in March 1998. I will refer to that case and its implications shortly. The Bill aims to overcome the effects of that decision by placing the law on rating valuations on a fair and equitable footing and ensuring parity of treatment between ratepayers. It makes explicit one of the key assumptions that underlie the valuations made for both the 1990 and 1995 rating lists. Just as importantly, it also clarifies the position with regard to future revaluations.
As noble Lords will be aware, annual rates bills are calculated by multiplying the rateable value by a figure—equivalent to a rate in the pound—set annually by the Government. It is therefore essential that these rateable values are assessed fairly. A full revaluation exercise is carried out every five years. Revaluations are carried out on the basis of a common valuation date; for example, the revaluation in 1995 was based on rental values on 1st April 1993. The 2000 revaluation is currently under way based on rental values on 1st April 1998.
As noble Lords will know, rateable values are the equivalent of a notional annual rent estimated for each rateable premises on the basis of a so-called "hypothetical tenancy". Until the introduction of national non-domestic rates in 1990, the basis on which this rent was estimated allowed for two different bases of valuation, depending on the type of property to be valued. The first (used for non-industrial property) was a valuation on the assumption that the landlord under the hypothetical tenancy would be responsible for keeping the property in repair. This was called valuation to "gross value" and deductions were made from the

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figure arrived at to reach the rateable value. It was established by case law that, when valuing to gross value, an assumption was made that the property was in a state of reasonable repair, disregarding any repairs which would be uneconomic to carry out. The majority of commercial properties were assessed on that basis.
The alternative basis of valuation was valuation to net annual value, where the tenant was deemed to be responsible for repairs. While there is no reported judgment which gives detailed consideration to the question whether the same assumption applies in net annual value cases, leading writers have given their opinion that there was nonetheless no necessary difference, and the same assumption had to be made; that is, that premises were to be deemed to be in a state of reasonable repair when estimating their annual value.
The rating hypothesis was altered in 1990 as a result of the Local Government Finance Act 1988 which was introduced by the previous government. Schedule 6 to the Act, which this Bill seeks to amend, requires the obligation for ongoing repairs to be assumed to be that of the tenant under the hypothetical tenancy, whereas under the previous system, as I have said, it was assumed to be the responsibility of the hypothetical landlord. This change reflected the general movement in the non-domestic property market towards leases where the tenant had such a repairing obligation. Thus it reflected the real world. It allowed valuers to use direct rental evidence obtained from leases without having to adjust that evidence to accord with the hypothesis, as happened prior to 1990.
However, it was not the then government's intention that the approach to valuation should change in respect of the assumption of a state of reasonable repair. Indeed, valuation officers continued to apply the primary assumption in valuing a property; namely, that it was in a state of reasonable repair.
However, the decision in the case of Benjamin v. Anston Properties given by the Lands Tribunal on 11th March 1998 was to the effect that this approach was wrong. The tribunal found instead that rating valuations should reflect the actual repair condition of the property on the valuation date. The decision in the Anston case would allow any ratepayer who considered it was to his advantage to challenge his valuation assessment in either or both of the 1990 and 1995 rating lists. The ratepayer would be able to cite the decision in Anston in support of an appeal on the grounds that the rateable value ascribed to his property in the rating list did not take account of the actual repair condition of the property. As a result, we believe that the decision potentially calls in to question a large proportion of the valuations carried out for both the 1990 and 1995 rating lists.
The Bill therefore seeks to underpin the rating valuations made for both of these lists by confirming the basis on which they were made. It also establishes firmly that property is in future to be valued on the assumption that it is in a reasonable state of repair. This is clearly important not only to protect the integrity of the 1990 and 1995 rating lists but also to make the
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position absolutely clear in respect of the revaluation, already under way, which will take effect in new rating lists in April 2000.
In doing this, we are simply re-establishing the approach to valuation that was understood to exist before the rating hypothesis was changed in the 1988 Act. The Bill does this by making clear that it is to be assumed that the property is in a state of reasonable repair. However, there is an important and equitable exception to this assumption. The exception to the repair assumption applies where a reasonable landlord would consider the cost of carrying out those repairs to be uneconomic. This exception follows pre-1990 established case law. Our aim in introducing the Bill has been to treat disrepair since the 1990 revaluation in the same way as it was treated before 1990 under gross value; and in the same way as valuation officers have treated it in the valuations they have made since then. No more, and no less.
Having explained the provisions of the Bill, I should also record some of the representations that the Government have received about it. It has been clear since the Bill was introduced that the professional bodies representing rating surveyors—the Royal Institution of Chartered Surveyors, the Institute of Revenues, Rating and Valuation and the Rating Surveyors Association—had concerns that the Bill would go further than the Government had suggested. Officials from the Department of the Environment, Transport and the Regions and the Valuation Office Agency have met with representatives of these bodies. These representatives have made their main concerns quite plain. Officials have sought to reassure the wider profession that valuation practice will not be affected by this Bill.
It has been suggested to us that since we are planning to require valuers to assume a state of reasonable repair we should define what that term means within the Bill and that we should define the circumstances in which any damage should be taken into account in the valuation. Noble Lords may think that this would be innocuous, but I believe that it would be dangerous. There is a body of case law which elucidates what is meant by a reasonable state of repair. I also believe that if we were to try to define what the term means in statute, we would run the significant risk of introducing unintended restriction and so lose the flexibility which valuers and the courts need in deciding what is reasonable in the particular circumstances of each case. Similar arguments apply to the treatment of damaged properties under the rating system.
I also believe that it could be counter-productive to try to be too specific. As Mr. Charles Partridge, the Chairman of the Rating and Local Taxation Panel of the Royal Institution of Chartered Surveyors said in a letter of 8th February to the House of Commons standing committee, we could not hope in legislation to anticipate all the possible combinations of events which might need to be considered when valuing a property in disrepair. I agree with that view. It is far more sensible that we should rely on existing valuation practice, supported by the existing case law, which can, if necessary, be developed by the courts as and when

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difficult or marginal cases arise. The Valuation Office Agency is drawing these strands together in a practice note which it is discussing with the professional bodies.
To summarise, this short, technical Bill amends the Local Government Finance Act 1988 to ensure that property in England or Wales which is subject to non-domestic rating is valued consistently, on the assumption that it is in a state of reasonable repair. This assumption will apply whatever the actual condition of the property, except in relation to any repairs which it would be uneconomic for the landlord to carry out. The Bill ensures that rating valuations are made on a fair and consistent basis for all ratepayers and ensures the integrity of all valuations carried out under the Act of 1988.
Moved, That the Bill be now read a second time. —(Baroness Farrington of Ribbleton.)
9.32 p.m.
The Earl of Lytton: My Lords, I thank the noble Baroness for that introduction. As it happens, this is the third time this week that I have addressed the House. I call to mind the dictum of the late A1 Capone. He said that once is happenstance, twice is coincidence and three times is enemy action.
I appreciate that it would normally have fallen to the noble Lord, Lord Whitty, to introduce this Bill. I wonder whether there is some reason that the noble Baroness finds herself in the front row of Pharaoh's army on this occasion. In speaking to this Bill I must declare a professional interest as a chartered surveyor, and one whose professional career included nearly seven years in the Inland Revenue Valuation Office where I dealt largely with rating. My current professional interest is so small it is hardly worth declaring. However, I differ on a number of the points made by the Minister. I wish to give a slightly more simplified explanation.
In the days when I started to deal with rating, non-industrial, commercial properties were, as the noble Baroness has said, valued to gross value, which was the rent reasonably to be expected from a hypothetical tenant, if that hypothetical landlord carried out all the repairs to maintain the property sufficiently to command that rent. The actual parties were disregarded. Normal running repairs and maintenance were also disregarded, but major disrepair, damage, functional and economic obsolescence were, however, taken into account. In the event of significant damage, substantial reconstruction, total destruction or other serious impact on the property assessments were often reduced, perhaps to a nominal £1. All this on the assumption that after a certain point the landlord would reduce the rent rather than carry out the repairs. The precedents are set and well established.
After the 1988 legislation, of course, gross value disappeared, as the noble Baroness said, and all properties were assessed directly to rateable value. The repair assumption changed from what the landlord could be expected to do and the rent he might reasonably anticipate to what the tenant would consider appropriate by way of repair, and thus his bid to a landlord. This moved matters much closer to the real world of
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commercial full repairing and insuring leases and was, I think, broadly welcomed. In each case the tenancy was assumed to run from year to year and any indications for rental values had to bear that timescale in mind. That happened both before and after the 1988 legislation.
While the landlord and the tenant were effectively hypothetical, the property to be valued is always undeniably real. It is to be valued as it stands; or to use the Latin doctrine rebus sic stantibus. It was never the rule—I was in post to administer it—that substantial repair was to be ignored. So I must take issue with the noble Baroness on some of her introductory remarks on this point.
All was fine until the case of Benjamin v. Anston Properties Limited which, as the noble Baroness said, came before the Lands Tribunal last year. This concerned an office building in Brighton with a substantial level of disrepair and where the remedial costs were materially greater than the estimated annual rental. It is worth noting what the Lands Tribunal president, Judge Marder QC, said. He described counsel for the valuation officer's proposition that the semi-derelict office building should be valued as if it were in good condition as,
"extending the meaning of the word 'reasonably' to an unreasonable degree".
Following the plentiful and long-established case law, the Lands Tribunal—I think not surprisingly to the profession—found for the ratepayer. The valuation officer appealed but, presumably because of this Bill, withdrew it, finding a government with a large majority ready to take on the matter with perhaps less potential exposure to costs and greater certainty of outcome. I leave it to others as to whether it is proper to use parliamentary time in such circumstances.
Unfortunately the wording of the Bill makes the totality of its intentions unclear. I for one cannot understand it and I am supposed to know about these things. For the first time it splits the personality making the rental bid from the one making the assessment of cost benefit with regard to repairs. I see this as a departure from the 1990 position in which the test was what, on a dispassionate assessment, it was reasonable for the landlord to carry out, not what the landlord himself considered economically worthwhile, as the Bill suggests.
Not surprisingly, the professionals in this field started asking questions about the intentions behind the Bill. My impression is that the professionals are far from satisfied with what remains now in the Bill despite the discussions that they have had. But what is surprising is that the Government seem to have been unable to provide answers. All that they will say is that the Bill adopts the test which existed before 1990. But, of course, as I have demonstrated, it does no such thing.
Indeed, the Anston case was thought by most practitioners to have followed scrupulously the established precedents and that it made no new law. The fact that the Valuation Office agency has persuaded the Government to follow the legislative route makes it pretty clear to me that what is intended is in fact a departure from the established position. So there is a

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dichotomy between what the Government claim they are doing and what the rather novel wording of Clause 1 may actually achieve.
The key to all this is to be found in the Second Reading debate in another place, when the Minister for Local Government and Housing said it was an assumption that,
"other than in extreme cases … the property is, and remains, in a state of reasonable repair". —[Official Report, Commons, 11/1/99; col. 58.]
That is a factually incorrect statement of precedent and practice; and the statement has not been totally withdrawn.
Amendments were proposed in another place, first, in an attempt to clarify the wording so that it indeed goes no further than the traditional understanding of the repairing obligation; and secondly, to place on the face of the Bill an affirmation that where a property is in material disrepair, that will, as hitherto, continue to be taken into account. The Government have consistently rejected such amendments. Their responses have simply skirted round the issues and give little confidence.
Having given several conflicting explanations, at Third Reading in another place, the Minister seemed to acknowledge the lack of clarity. She announced (at col. 501 of Hansard) that the Valuation Office agency had drafted a practice note on the approach to valuation to be adopted, as mentioned by the noble Baroness.
This is a classic case of delegating what should be clear in primary legislation to a non-statutory document which could readily be revised. The fear is that instead of taking the actual state of repair into account, this may be part of a move to an assumed or deemed state of repair. The effect that that could have on run-down areas awaiting redevelopment readily brings to mind the scandals that I well remember of rooms being removed from industrial buildings in the West Midlands to avoid rating liability under the 1974 surcharge provisions. Part of the reason why there is such close scrutiny of the valuation effects of the state of repair is that there is no longer a general exemption from paying rates on empty commercial property. In the context of a property tax, it must make for the grossest form of inequity and injustice if the real world value of the property in its actual state is set aside in favour of some administratively convenient assumption.
At the small business end of the scale, would a property such as the lemonade factory in Malton flooded by the River Derwent in the past day or two benefit from a substantially reduced assessment in future? Or is it the Government's intention that it should be deemed to have been repaired? We should be told what the effects will be for serious damage which will ultimately be repaired.
I gave the Minister prior notice of my intention to raise two points that are fundamentally at issue. First, there should be a clear, unequivocal and unambiguous statement as to the precise intentions and the effect on valuation for rating purposes of the repairs issue—and that should be on the face of the Bill. Secondly, there should be an explanation of the status, if any, of the practice note and the reasons behind its creation. This is
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not a question of attempting to define "reasonable", but of retaining a body of existing case law which is already well-established.
As it stands, the Bill cannot be allowed to become law without amendment. Its wording is unclear; its intentions are opaque; and, in adopting a practice note to explain its shortcomings, it incorporates an improper procedure which could circumvent necessary parliamentary scrutiny. I hope that the Delegated Powers and Deregulation Committee will look very carefully at this matter. Will the Minister be kind enough to place a copy of the practice note in the Library?
I do not accept that there will be a flood of appeals arising out of the Anston case. Where is the evidence?
While I do not believe that the Bill should ever have come before Parliament, I shall seek to amend it constructively, to give it the clarity that has always been the hallmark of its legislative parentage. Meanwhile, I look forward to the Minister's reply.
9.43 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I speak on behalf of my noble friend Lady Hamwee, who is unable to be present. I cannot bring her expertise to the Bill. I am grateful to the noble Lord for saying that he does not understand a great deal of the Bill's content. I struggled hard with it—particularly when I arrived at at least three assumptions in one section and a large number of hypothetical points. It seems somewhat to ignore the real world.
My main worry is that in the real world those who will suffer most from this legislation will be on the margins of towns, where regeneration should and could be taking place. The Bill does not take any account of repairs which will be undertaken but which for some reason the landlord, though in best faith, is unable to undertake at the time. Such properties will not be readily bought with a view to repairing them, as this approach to valuation will make them more uneconomic. The Bill also fails to differentiate between a landlord who has chosen to let his building fall into disrepair and one who has done so other than by choice.
The noble Earl, Lord Lytton, chose the real life example of flooding, something that affects us in Somerset. I can imagine one of our Somerset towns in bad need of regeneration and under frequent threat of flooding. People would not touch commercial properties there with a barge pole if this Bill came into force. I should be grateful for an explanation of exactly how, in the non-hypothetical, non-assumption world of difficult-to-let properties and difficult-to-regenerate towns this Bill can possibly bring any benefit.
9.45 p.m.
The Earl of Courtown: My Lords, I thank the Minister for her description of the Bill. We should all be aware of what the noble Earl, Lord Lytton, said, with his great experience in such matters from his time in the Valuation Office. There were also important points made by the noble Baroness, Lady Miller.

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As other noble Lords have said, the Bill arises from the case of Benjamin v. Anston Properties Limited, where the matter arose of whether the valuer should take into account the state of repair of the property. The noble Earl, Lord Lytton, mentioned the words of the president of the Lands Tribunal and I shall not go over it again. However, I feel that the Bill could create further confusion and litigation.
Many in the profession were surprised that neither the Court of Appeal nor the House of Lords had been asked to give its opinion and were also surprised at the haste of legislating without consultation. Can the Minister tell me why that was the case, particularly with a subject so complex and with so many experts available both in the Valuation Office and in the private sector?
In the Bill we also come across the word "reasonable" in two areas: "reasonable repair" and "reasonable landlord". That introduces a subjective measure into the valuation process. Surely some definition is required. I cannot see why the Minister said that it would be dangerous. I understand that the practice notes will have guidance on the matter but, as the noble Earl said, they will have no standing in law.
Having read Hansard in the other place, it appears to me that three options have been put forward by Her Majesty's Government: first, to restore the law to what it was before; secondly, to return it to what the Valuation Office thought it was before Anston; or, thirdly, to try to get the law back to what it was before the 1990 revaluation. Which option are Her Majesty's Government taking? Can the Minister tell me what was wrong with the decision in Anston?
Another area that has raised concern is the question of temporary disrepair due to some physical problem, mentioned by the noble Earl and the noble Baroness, for example, from fire or some other natural disaster. It does not appear from the Bill, notwithstanding what the Minister said, that this has been taken into account. The only option available would be to take the property out of rating, which may not be desirable. For example, a fire may destroy only a small part of a factory but could still render the entire building unusable.
There is concern for the plight of the small ratepayer in secondary or tertiary locations, perhaps in starter units, where the state of repair would not necessarily be reasonable. But for that type of property it would actually be a reasonable state of repair. It may be that this is how the Valuation Office will interpret the legislation, but there is nothing in the Bill to give the ratepayers this reassurance.
Many interesting points have been raised in the debate and I am sure that there are a number of issues that we will debate in greater detail during the Committee stage. I wish to underline to the Minister that these are not political issues that we are debating but areas of concern that must be put right to enable the Bill to work properly and also to enable the property professions to interpret the legislation. What the industry needs is legislation that gives certainty, simplicity and consistency. It is to be hoped that before this Bill finishes its passage through this House we shall have achieved that aim.
9.49 p.m.
Baroness Farrington of Ribbleton: My Lords, as I said to the House at the beginning of our debate, the Rating (Valuation) Bill is a short Bill that encompasses a simple principle. That principle is that in valuing a property for rating purposes the property is assumed to be in a state of reasonable repair. This assumption will apply whatever the actual condition of the property, except in relation to any repairs which would be uneconomic. As has become clear this evening, while the principle is simple the background to this Bill and rating valuations in general is far from that. Noble Lords have assisted me very much in making that point.
The Bill puts the law on rating valuations back to that on which the officers of the Valuation Office agency have prepared all valuations for both the 1990 and 1995 lists, and on the basis of which work on the 2000 revaluation has already begun. Case law going back well before 1990, and the practice established as a result of that case law, means that what it is reasonable to expect in relation to the repair condition of any hereditament will depend on the age and type of the property, the locality in which it is situated and all the surrounding circumstances. The precedents are well-established. If we tried to redefine the term "reasonable repair" on the face of the Bill we would run the significant risk of introducing an unintended restriction and so lose the flexibility which valuers and the courts need in deciding what is reasonable in the particular circumstances of each case.
Reference was made by the noble Earl, Lord Lytton, and others to the position following the judgment in Anston. I am not qualified to say what valuers believed or did not believe the 1988 Act to mean, but the issue does not seem as clear cut as they now make out. Certainly, the Valuation Office agency took a contrary view. The leading textbook on rating Ryde on Rating and the Council Tax also clearly took the view that properties should be valued on a common repair assumption.
While it is interesting to debate who thought what and when, it is ultimately irrelevant. What matters is that valuation officers, who have the statutory duty to compile and maintain an accurate rating list, have actually carried out valuations for both the 1990 and 1995 rating lists on the general assumption that a property is in a state of reasonable repair. It is the integrity of those valuations and those being undertaken for the 2000 rating list that this Bill seeks to defend.
It would have been open to the Valuation Office agency to appeal against the Lands Tribunal decision in Benjamin v. Anston or pursue another case to appeal on that point. However, we saw no merit in the delay that would be necessary if the point were to be pursued through the higher courts. The practical business of enabling the current revaluation to proceed on a clearly established footing, as well as underpinning the existing lists, is of the utmost importance. That is why we brought forward this Bill. Were the Bill not enacted the rating system would be unfair as between individual ratepayers.

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The value of non-domestic property on which the annual rate liability is based is, unless there is a material change of circumstances, assessed only once every five years. Fairness dictates that at that time two identical properties in the same location should be given the same rateable value and, hence, should have the same rates liability over the following five years. But two buildings—identical in every other respect—may, on the day on which they are assessed for rates, be in different states of repair. Indeed, it is almost certain that they will be. Most commercial property is let on the basis that the occupier will maintain the property in a reasonable condition. And as noble Lords know from their own property, all buildings need repairing simply to maintain their condition.
Yet, as will be equally clear to noble Lords, the timing of those repairs and the speed with which those works are done depends on the individual decisions of the person occupying the property. It is likely, therefore—indeed, almost certain—that two identical properties in good repair on the day on which they were let to different tenants will be in more or less different states of repair on any later date, including the common date every five years on which the properties have their rateable values assessed for rating purposes.
That being so, if rateable values were based on the actual repair condition of the property on a single, arbitrarily chosen date, the two properties would not have identical rates bills. They would have different rates bills over that five year period unless the rateable value was adjusted to reflect changes in the repair condition of the property.
In bringing the Bill before the House, we are simply seeking to re-establish the approach to valuation that was understood to exist before the rating hypothesis was changed in the 1988 Act. Our aim in introducing the Bill has been to treat disrepair since 1990 in the same way as it was treated before 1990 under the gross value system of rating valuation and in the same way as valuation officers have treated it in the valuations they have made since then. No more and no less. Existing valuations will therefore not be affected.
The noble Earl, Lord Lytton, referred to his entering the fray as, perhaps, enemy action. Far from viewing his contribution as enemy action, I found his questions interesting and instructive. I will refer in conclusion to the issues to which I may not have given an adequate reply.
I am concerned that the noble Earl remains unclear about the purpose of the Bill. The purpose of the Bill is straightforward and specific. It is to reverse the decision in the Anston Properties case and secure that the valuations contained in past, present and future rating lists are not subject to challenge on the basis of the analysis of the Lands Tribunal in that decision. In other words, it is to underpin the basis of the existing rating lists and those which are now being compiled to take effect next year; and to enact expressly in legislation what was merely assumed by those promoting the Bill to be the law at the time when the Local Government Finance Act 1988 was passed.
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The provisions of the Bill will therefore apply for the purposes of new rating lists which will take effect on 1st April 2000, and retrospectively for those of the 1990 and 1995 lists. In most cases, this will have no effect on the rate payable on property entered in the 1990 and 1995 lists, although ratepayers who challenged their valuations before the decision in Anston are safeguarded by the Bill.
The noble Earl asked whether it would be possible to place in the Library a copy of the practice note. The answer is yes. He is right to say that, of itself, the VOA's practice note has no force in law. I hope that I have not suggested otherwise. It will be what it says it is; a practice note. It is not intended to be a substitute for legislation, but to do a different job altogether; to set out how the VOA proposes that its valuation officers will translate the legislation into practice.
Legislation cannot and should not spell out everything, particularly the detail of how it is proposed to be implemented. That is all the more true in a field such as non-domestic rating in which the law as a whole is a vast iceberg of which the legislation is only the tip and there is a great deal of case law below the water-line.
Nor will the practice note be the product of the VOA's fancy or produced in a vacuum. It will deal with the valuation of properties and in particular will address the treatment of the types of cases about which the professions are most concerned. It will draw on existing case law in support of the approaches it proposes should be taken in respect of each one, approaches which will restate the ways in which those properties are treated now. It would be almost impossible to draft legislation which will deal adequately with every approach, as I am sure the noble Earl would agree. The note offers a sensible way forward and the VOA is at present consulting the professional bodies on content. As I have explained, the Government's intention is to reverse the effect of the decision in the Anston Properties case.
The noble Earl, Lord Lytton, and the noble Baroness, Lady Miller, referred to, for example, the effect of a flood. If a severe storm or any other external force renders a property incapable of beneficial use, the rating assessment is removed from the rating list until such time as the necessary works have been carried out to enable the property to be used again. The Bill will not affect that position. If a property is flooded for a short time during exceptionally heavy rain, for example, it is unlikely the damage will be sufficient to affect its rating assessment.
We believe that the Bill will place the law on rating valuations on a fair and equitable footing and make clear the assumptions which underlie those valuations. It is a necessary and worthwhile measure consistent with good administration and, above all, it will ensure fair treatment and a fair tax assessment for all ratepayers.
I thank noble Lords who have taken part in the debate. In particular, I apologise to the noble Earl, Lord Courtown, for not having the opportunity to reply to some of the detailed points which he raised. I shall make certain that Hansard is read very carefully to ensure that we write on any points which have been

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raised. Further, I am only too happy to offer a meeting with officials with all of your Lordships who have taken part in this Second Reading debate before we reach Committee stage. As the noble Earl said, this is not a party political issue. Anything which can be done to ensure that we understand fully the position from which we each speak will no doubt be helpful. I look forward to having the opportunity to discuss issues and I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Easter Act 1928 (Commencement) Bill [H.L.]
10.2 p.m.
The Earl of Dartmouth: My Lords, I beg to move that the Bill be now read a second time. This Bill was originally introduced in 1928 when it passed all its stages in both Houses. However, it did not actually commence. The purpose of the Bill is to permit the 1928 Bill to come into effect so that Easter Day will always be the first Sunday after the second Saturday in April.
I shall speak briefly under three main headings. First, I shall tell your Lordships how Easter is currently decided. Secondly, I shall deal with what may be termed the ecclesiastical arguments. Thirdly and finally, I shall refer to the practical arguments.
First, let us consider the interesting question of how Easter is currently decided. Easter Sunday is now fixed in accordance with tables which were drawn up for Pope Gregory XIII when he reformed the calendar in 1582. Those tables are founded on a so-called metonic system. Meton was an Athenian astrologer who lived over 400 years before the birth of Christ. The tables are extremely ingenious but what they really give is not the movement of the moon of the astronomers but an entirely artificial ecclesiastical moon which has been used for convenience ever since.
In short, Easter is currently determined from astronomical tables relating to the movement of the moon originally formulated over 400 years before the normally accepted date of the birth of Christ. The reality is that this long custom of what might be termed the floating date for Easter has its real basis in neither religion nor science but in what might be termed happenstance or even accident. By contrast, I point to the fact that Christmas Day was fixed by law in the fourth century. It was fixed as 25th December from the solar calendar based on the movement of the sun.
I now turn to what might be termed the ecclesiastical arguments. Your Lordships will see that the Bill proposes that the legal Easter be the first Sunday after the second Saturday in April. It is legitimate to ask why that date has been taken, or to put it more precisely, why that date was selected by my predecessors in 1928. The reason is that, according to the best research, the date of the Crucifixion is normally perceived as being 7th April
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in our calendar. The date proposed for Easter in the Bill would therefore be as near as possible to the real date of the original Easter virtually 2000 years ago.
However, I concede that it is by no means improbable that the commencement of this Bill might, in a manner of speaking, decouple the Church's day from the Easter holiday. That might be perceived as being a serious, even lethal, objection. However, I point out that there are many people equally Christian and civilised who take differing views of holy days and holidays. Some people seem to believe that one is, as it were, more holy by observing a holy day as a holiday. Another, perhaps a smaller group, takes the entirely contrary view that if one observes a holy day as a holiday one is somehow less holy. Both points of view are entirely legitimate and point to the fact that there is nothing intrinsically wrong in decoupling the Church's holy day from the normally accepted public holiday.
The reality is that in practice there are to some degree different kinds of holy days. For example, Christmas Day is an important religious celebration and a great family festival. However, Ascension Day, which is scarcely less important from a religious point of view, is hardly recognised in the lay world. In so far as it is celebrated at all, it is only observed religiously—if indeed that is the proper word to use in this or in any other debate.
I now address the ecclesiastical arguments. I have not been fortunate enough to have been in correspondence with the present Archbishop of Canterbury, but I have looked up the views of his predecessor in 1928 when the predecessor to this Bill passed through both Houses of Parliament in all its stages. The Archbishop of Canterbury of those days said in this very Chamber:
"In the view of the Church there is no dogmatic reason why the Church should oppose a fixed date for Easter".
I now turn to the practical reasons, which I also touched on in a letter that I sent to every attending Member of this House, to which I received about 15 replies. To give just a few examples, businesses, retailers and all manufacturers would all like to know the date of Easter well in advance. It would enable them to plan ahead and would do something real and helpful for enterprise and prosperity, on which subjects the Minister, the noble Lord, Lord Simon, who is not in his place, addressed the House in his customary fashion only yesterday. Such a fixed date would also make life easier for parents, teachers and all would-be tourists and travellers.
As I mentioned earlier, the original Easter Bill that provided for Easter to be the first Sunday after the second Saturday in April—this year it would be Sunday, 11th April—was passed in 1928 but never came into effect. As the Archbishop of Canterbury of those days said on 23rd July 1920:
"And I believe that the establishment of a fixed Easter would be a gain in the civil life and in the ecclesiastical and educational life … of the community as a whole".
I hope that this Bill will meet with your Lordships' approval.
Moved, That the Bill be now read a second time. —(The Earl of Dartmouth.)
10.10 p.m.
The Lord Bishop of Oxford: My Lords, the Christian Churches worldwide are currently taking new steps to agree a common but not a fixed date for Easter. The British Churches would be helped in playing their part in this delicate task if the Easter Act 1928 were not reactivated at the present time. The Easter Act would affect only the United Kingdom. That would create particular difficulties for the Church of England and the Roman Catholic Church, which would both continue to observe Easter on the same day as the rest of their world communions. Church authorities would be guided not so much by the convenience of a fixed date but much more by the possibility of an Easter festival celebrated by all Christians throughout the world on the same date.
In the 20th century the Christian Churches have rediscovered a deep concern for Christian unity. Despite substantial progress towards visible unity, a major stumbling block remains the fact that the Eastern and Western Churches calculate the date of Easter in different ways. Essentially, that is due to differences in calendars and lunar tables. Since 1582, Western Christians have calculated the date of Easter using the Gregorian calendar, while Eastern Orthodox Christians have generally continued to use the older Julian calendar. In 2001 the dates of Easter, according to both Eastern and Western calendars, will coincide.
Currently the Churches are considering a set of proposals that will enable a common date—not a fixed date—of Easter to be agreed. The recommendation is threefold: first, to maintain the norms agreed by the first Ecumenical Council of the Christian Church after New Testament times, the Council of Nicea in AD 325, before East and West began to diverge, namely, that Easter should fall on the Sunday following the first vernal new moon; secondly, to calculate the astronomical data (the vernal equinox and the full moon) by the most accurate scientific means; and, thirdly, to use as the basis for reckoning the meridian of Jerusalem, the place of Christ's death and resurrection. I believe that when that agreement comes, as I hope and pray it will one day, it will go a long way to meeting the objections made by the noble Earl, Lord Dartmouth, about the calculations being based upon very old-fashioned science.
The main point is that a fixed date for Easter would obscure and weaken the vital biblical link between the events of Holy Week and Easter, on the one hand, and the Jewish Passover festival, which is still calculated with reference to the vernal equinox, on the other.
The Christian Churches are being invited to study these proposals in principle with a view to consulting together in the year 2001 when, as already mentioned, both East and West will celebrate Easter on the same day. The 1998 Lambeth Conference of all bishops of the Anglican Communion welcomed that initiative, supported the recommendations and invited all the provinces of the Anglican Communion to endorse them.
The noble Earl, Lord Dartmouth, mentioned the view of the Archbishop of Canterbury in 1928, suggesting that at that time the Churches had no principled objection to a fixed date for Easter. However, one of the
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big changes since then is the fact that the Churches now work closely together and do so on a worldwide basis. That is why Church leaders in this country are perhaps more sensitive now than they were then to the ecumenical and worldwide dimensions of this issue. They will want to keep in step with fellow Christians belonging to the Eastern Orthodox Church as well as with the great bulk of western Christianity through the Roman Catholic Church.
It seems likely that in any eventuality the Churches will want to see the link between the religious festival and the public holiday maintained. The origins of the holiday are to give public expression to the Holy Day. In the event of a disjunction—the noble Earl referred to a "decoupling"—between the religious festival and the public holiday, large numbers of Christians would continue to observe the festival on the traditional day and would strongly oppose transference of the name "Easter" to a secular holiday.
Although I listened carefully to the points made about commercial considerations, is it not true that it is possible at the moment to calculate the date of Easter five or 10 years ahead or perhaps even as long ahead as one might want? There is no difficulty at the moment about commercial organisations planning their business as many years ahead as they want. For those reasons, I think that the Christian Churches of all denominations would very strongly want to oppose the idea of a fixed date for Easter.
Lord Hacking: My Lords, perhaps I may intervene before the right reverend Prelate sits down. Has he not identified the problem between the religious significance and celebration of Easter and its secular importance as a holiday and, indeed, a bank holiday'' If the right reverend Prelate wants to keep the secular holiday linked to the religious holiday—that would mean that people would have time away from work in which to consider the religious significance—do we not have to recognise the problem that the secular holidays are "concertinaed" at that time of year? We have the Easter holiday, the May Day holiday and then the Spring bank holiday. We have three secular holidays within a period of eight weeks. We go through to August for the next bank holiday, and then there is a great blank until the end of the year. The problem on the secular side is that holidays are not distributed evenly throughout the year. If the right reverend Prelate is advocating that there should be a religious and a secular holiday at the same time, surely we must recognise the concertina problem with regard to the secular holidays.
The Lord Bishop of Oxford: My Lords, perhaps I may respond briefly. First, the Churches want to keep a link between the Holy Day and the holiday because we believe that that is deeply embedded in our cultural life. Secondly, some continental countries have as many as 50—or even 60 or 70—public holidays a year. The European tradition—and certainly that of our continental brothers and sisters—suggests that a certain degree of "concertinaing" is not necessarily a bad thing.
10.18 p.m.
Lord Manton: My Lords, about 20 years ago I had to give evidence to a Royal Commission looking into the future of horse-racing. Your Lordships may say that that has nothing to do with Easter, but it has. Having been cross-questioned by the dozen or so members of the Royal Commission for about an hour and a half—apparently, two hours were set aside for the inquisition—the chairman, the then Lord Rothschild, asked whether I and my two companions would like to put any questions to the commission. That took the wind slightly out of our sails. At that time I was responsible for preparing the fixture list for all horse-racing for 59 race courses on about 340-odd days of the year. I said, rather off-the-cuff, to the commission, "Why cannot we have a fixed Easter?" I have to say that most of its members seemed very much in favour of the proposition. Lord Rothschild said, "Why cannot we have a fixed Easter?" There were all these fairly intelligent people, and none of them really had a view. They mumbled something about the Church or some Churches not agreeing.
Luckily for them, or for Lord Rothschild, the Home Office provided a civil servant, an adviser to all Royal Commissions, who came up with a very simple answer. This was 20 years ago so I am not necessarily disagreeing with the right reverend Prelate. The civil servant said, "The Church of England is quite prepared to have a fixed date for Easter, provided of course that the Church of Rome agrees. "He added, "What is more, the Church of Rome is quite prepared to have a fixed Easter, provided the two Orthodox Churches agree but, as the Greek and Russian Orthodox Churches have never agreed on anything, it is not very likely to happen."
The commercial aspects are extremely strong. I disagree with the right reverend Prelate. To market anything it must be done in the same week of the year all the time. Anything like a fixture list, whether it be sporting, commercial or whatever—it might even be the school syllabus—is much simpler if done in the same week every year. I am very supportive of the Bill.
10.22 p.m.
Viscount Bridgeman: My Lords, I find myself speaking to both sides of the fence. I have great sympathy with my noble friend Lord Dartmouth who has made out a persuasive case for a fixed Easter. It is possible to have a reasonable interval between the Christmas and spring holidays and the noble Lord rightly referred to the easier planning made possible in all aspects of our national life. My noble friend Lord Manton referred in particular to the racing calendar, but I include commerce, education, tourism and many other aspects of our national life. In rationality there can be no other solution.
This subject was, I believe, last debated in your Lordships' House on 7th April 1984 when our late noble colleague Lord Airedale made a speech of such distinction that it was quoted at his memorial service by the noble Lord, Lord Tordoff. Lord Airedale, while recognising the Christian aspects of the problem, wished
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to see Easter sufficiently far into April to guarantee a reasonable chance of better weather, and at the same time not to bring it too close to the spring holiday. In his winding-up speech my noble friend Lord Elton, then the Minister at the Home Office, said that the government's view was that they wished to await the outcome of talks between the Churches. And that is the Opposition's view today.
Easter is not only a secular holiday. It is historically a Christian one, as has been recognised in the debate. In saying that I am fully aware of the significant proportion of the population of this country who are not of the Christian faith, nor indeed of any faith at all. Nevertheless, Easter has its historic roots in the Christian Church and I suggest to your Lordships—a point made strongly by the right reverend Prelate, the Bishop of Oxford—that the initiative for any change in the date of Easter must lie in the first instance with the Christian Churches, not only in Great Britain but internationally. I say that through no theological dogma; it is a practical move.
As noble Lords pointed out, the present Easter was fixed by Pope Gregory XII in 1582 and it is a fact often taken for granted that one of the early manifestations of ecumenism is that all the western Churches have followed that formula. The complication is, of course, the Orthodox Church, to which noble Lords referred. Incidentally, that makes the Orthodox Church an unlikely bedfellow of the United Kingdom Inland Revenue in that the two are apparently the only two bodies that follow the old Julian Calendar.
The right reverend Prelate assured us that talks are in hand with the Churches, both east and west, to agree a common date, though I understand from his speech that it will still be moveable. If, as appears unlikely, they agree a fixed date, the object of this Bill will presumably have been satisfied. Nevertheless, the common date will be a start.
Let us consider one or two practical implications of this Bill were it to be implemented. Citizens of the United Kingdom going for the UK Easter holiday, say to continental Europe, to celebrate Easter may well find that Easter in that country will be celebrated one week later. Or we can consider the case of an employer who receives a request from a committed Christian in his employment to be allowed to take off Good Friday because it is being observed in Rome and elsewhere. Those are just two instances of the complications which would arise were the United Kingdom, on this question, to go it alone.
We are fortunate in that today there is a spirit of co-operation between Churches across the world far greater than in 1928 and—dare I say?—possibly 1984. The arguments for a fixed Easter are persuasive. While acknowledging that the rules for subsidiarity permit holidays in member states of the European Union to be fixed nationally, in the worldwide village it is only practical for the Easter holiday dates to be agreed at an international level, and that must be at the initiative of the Churches. This season is so central to the Christian faith that it must be left, in the first instance, to those Churches. Once progress has been made on that front,

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of which we have been assured by the right reverend Prelate, then the time will be right to revisit this question; in other words, not yet. Therefore we do not support this Bill but will not be opposing it at Second Reading.
10.27 p.m.
Lord Hoyle: My Lords, I listened with great interest to the points made in the course of this debate. Also, this is a matter to which the House has returned on many occasions. I say to the noble Earl that his Bill is a further expression of the concerns of your Lordships' House.
I can understand the point that has been pertinently put regarding the question of whether to see the date of Easter put on a more settled and comprehensive footing. There are good arguments for that. It is true, and indeed it was explained to us by the noble Earl, that the way at which we arrive at it is a mystery to many people. As he said, it derives from a resolution of the Council of Nicea in AD325 and was given statutory authority by the Calendar (New Style) Act 1750.
For those who do not keep a close eye on the calendar—the noble Earl is evidently one—Easter can often come as something of a surprise, and I admit that. However, I do not find the arguments that have been made here tonight about the convenience of a fixed Easter wholly persuasive. The date of Easter is well known in advance. For example, Whittakers Almanack provides the dates of Easter up to the year 2040 and the Book of Common Prayer, even beyond. So no one who needs to be aware of the dates for the purposes of planning, including the tourist industry, schools and businesses, has any grounds for uncertainty.
An argument is sometimes made that a date fixed in accordance with the Easter Act would improve the chances of better weather at Easter; indeed, that has been said again tonight. However, knowing the vagaries of our weather, I should point out that we are just as likely to get good weather with an early Easter as we are with one which falls a little later. We have considered all such proposals.
Mention has also been made about the "bunching" of holidays, especially by my noble friend Lord Hacking. Perhaps I may point out to him that the present pattern is now well-established. Unless agreement can be reached between the Churches, a fixed date could lead to an extra holiday being established in this period. So, in that respect, we could find ourselves in a worse situation, especially if the Churches did not recognise it.
Up to this point I have dealt with secular concerns, but there is another consideration, referred to by the right reverend Prelate, which overrides all of this. Fixing a date for Easter is not simply a matter of deciding upon another Bank Holiday: Easter is a religious festival of great significance. I do not believe that any attempt to change its date would be possible without the support of the Churches. Indeed, when the 1928 Act was passed, it was recognised that regard should be had to any opinions officially expressed by the Churches, or other Christian bodies, before an order was made to fix the date for Easter.
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As noble Lords will be aware—and it has been said again tonight—the Western Churches have always said that they would be willing to consider a change in the method of calculating Easter. However, as the right reverend Prelate said, they would not want to do this without a consensus being arrived at between the Eastern and Western Churches. There has, of course, been movement in that direction, but the fact remains that the stumbling block has been that the method of calculating the date of Easter between the Eastern and the Western Churches differs. As has been said, they differ as regards the calendar introduced by Pope Gregory, which is the one recognised by the Western Christian Church, and the Julian calendar, which is the one recognised by the Eastern Orthodox Church. The differences between the latter to date have always been regarded as a major obstacle, but in 1997 there was consultation in Syria, sponsored by the World Council of Churches and the Middle East Council of Churches. As has been said, proposals emerged for establishing a common date for Easter. Surely now is not the time to begin the change.
Such matters are under consideration by the Churches worldwide. I should stress that there are three proposals involved. The first is to retain the norms agreed at the Council of Nicea in AD325; namely, that Easter should fall on a Sunday following the first vernal new moon. That would also allow the link between Easter and, most importantly, the Jewish Passover Festival to be retained.
The second proposal is to calculate the astronomical dates by the most accurate scientific data available. I hope that that goes some way towards meeting the points raised by the noble Earl. The third proposal is to use the meridian of Jerusalem as the basis for reckoning. The Christian Churches are being invited to study these proposals in principle with a view to consulting together again in 2001. Significantly, in that year, both East and West will celebrate Easter on the same day.
I should make clear, as has been said during the course of the debate, that the acceptance of those proposals by the Churches would not result in a fixed date for Easter. However, it would result in the Eastern and Western Christian Churches worldwide having a common date to celebrate Easter. Moreover, as the right reverend Prelate said, the Churches place great importance on retaining the biblical link between Easter on the one hand, and the Jewish Passover on the other. It is thought that a fixed date for Easter would weaken and obscure that.
Serious deliberations are currently being undertaken by the Christian Churches worldwide on this issue. The British Churches would not be helped in this process by now bringing into force the Easter Act 1928. Moreover, it is likely that the Church of England and the Roman Catholic Church would continue to observe Easter on the same day as the rest of their world communions.
In the absence of any significant support among the Churches for fixing the date of Easter in accordance with the 1928 Act the Government do not consider that they could lend their support to this Bill.
Lord Hacking: My Lords, I say from these Benches that I entirely accept what my noble friend the Minister

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says; namely, that until the Churches agree on the date of Easter it cannot be fixed because it is a religious ceremony wholly connected with the Christian Churches. However, does not my noble friend the Minister agree that there is a problem as regards the distribution of holidays?
I believe it is a matter of supreme importance in our society to retain the family and the meeting together of the family. I do not have so much experience of European holidays, but I have a great deal of experience of American holidays. The fact is that Labour Day, which comes at the end of September, Thanksgiving, which comes in November, Christmas and the Spring bank holiday—Memorial Day Holiday, as it is called— which comes in May, are occasions for families to join together. We have to recognise that.
If we have our secular holidays bunched, with Easter as a roving date somewhere towards late March— I should disclose the interest that I was born on Easter Sunday in 1938 and I have had only one opportunity to celebrate my birthday on Easter Sunday since that date—there is a problem. I believe that we should address that matter. All I ask the Government to do is to look at the distribution of bank holidays, recognising me point that I believe is essential; namely, that these are occasions when families come together. Families in America come together on Memorial Day, on Labor Day, on Thanksgiving and at Christmas. That is also an important point which should be brought into the equation.
Lord Hoyle: My Lords, I understand the point my noble friend makes but it is wider than the issue we are discussing tonight. We have considered the bunching of holidays, but they are settled and recognised. I think there is a great coming together of families over Easter. Not only are they celebrating a secular holiday but also one of religious significance. That is of vital importance. I think my noble friend ought to take that into account. I emphasise again what I said earlier. I think it would be totally wrong at this time when the Christian Churches throughout the world are moving towards a common date for we in this country unilaterally to alter it and try to implement the 1928 Act.
10.38 p.m.
The Earl of Dartmouth: My Lords, I shall briefly discuss what has been said by the various speakers. The right reverend Prelate the Bishop of Oxford— the university of which town I am a graduate— mentioned that the Churches are currently negotiating a common but not a fixed date. It may be a common date
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but that still makes it moveable. Of course these negotiations have been going on for a long time. I believe there is a good argument for breaking the Gordian knot, as it were, and encouraging the Churches to finalise their mutual negotiations by passing this Bill.
The right reverend Prelate answered my points very eloquently. Perhaps I may say for the record that I regard "disjunction" as a much better coinage than my word "decoupling". But neither of us answered the problem very well. The right reverend Prelate made a good point when he said that Easter can be predicted even under the current arrangements. But, of course, very few people have the ability or the commitment to do so. Even if one can predict what the date of Easter will be in five or even 10 years' time, it does not invalidate the point that the date is still moving; is still floating, as it were.
I much appreciated the eloquent support given to my case by my noble friend Lord Manton. I just wish to place that on the record.
I now wish to turn to the points made by my noble friend Lord Bridgeman. He is right to say that if the Bill were passed there would be the possibility Easter being celebrated on different days in different countries. But that is exactly what applies at the moment with numerous other holidays apart from Easter. Anyone who has spent time in the United States will know that Thanksgiving and Labor Day are major holidays which are not recognised in other countries. There is also the divergence which presently exists between the Greek and Russian Orthodox Churches and the western Churches on the very date of Easter itself. It may be of passing amusement to the House to know that I researched most of my material for my speech from the debates which took place in 1928. It was clear from what my noble friend Lord Bridgeman said that most of the research for his speech came from the debates in this House and elsewhere in 1984. On that basis—1928 and 1984—who can say that the Conservative Opposition are not fully wired into the information revolution of the millennium?
I wish to thank the Minister for the serious response he made to my remarks. In particular, I was very taken by the points he made about the 1997 consultation by the Churches. Furthermore, he telegraphed that a further meeting is planned by the Churches in 2001. Even though that meeting between the Churches only envisages a common date for Easter, it is nonetheless a significant stepping stone towards a fixed date for Easter. In view of those remarks, I beg leave to withdraw my Motion for Second Reading.
Motion, by leave, withdrawn.
House adjourned at nineteen minutes before eleven o'clock.