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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
Mr. Roger Gale, †Janet Anderson
†Baird, Vera (Redcar) (Lab)
†Barlow, Ms Celia (Hove) (Lab)
†Blackman, Liz (Erewash) (Lab)
†Brokenshire, James (Hornchurch) (Con)
†Brown, Lyn (West Ham) (Lab)
Campbell, Mr. Gregory (East Londonderry) (DUP)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
†Evennett, Mr. David (Bexleyheath and Crayford) (Con)
†Follett, Barbara (Stevenage) (Lab)
†Gidley, Sandra (Romsey) (LD)
Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)
†Grieve, Mr. Dominic (Beaconsfield) (Con)
†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
†James, Mrs. Siân C. (Swansea, East) (Lab)
†Laing, Mrs. Eleanor (Epping Forest) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
Miller, Mrs. Maria (Basingstoke) (Con)
†Munn, Meg (Parliamentary Under-Secretary of State for Trade and Industry)
†Seabeck, Alison (Plymouth, Devonport) (Lab)
†Ussher, Kitty (Burnley) (Lab)
†Williams, Hywel (Caernarfon) (PC)
Geoffrey Farrar, Emily Commander, Committee Clerks
† attended the Committee
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Thursday 1 December 2005
(Afternoon)
[Janet Anderson in the Chair]
Clause 27
Conciliation
1 pm
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I beg to move amendment No. 95, in clause 27, page 15, line 38, at end insert—
‘(h) the Human Rights Act 1998 (c. 42).’.
Welcome back to the Chair, Mrs. Anderson. The amendment would include the Human Rights Act 1998 in the list of regulations and Acts under which the commission may make arrangements for the provision of conciliation services for disputes. The Government intend, as the explanatory notes show, to allow the commission to make arrangements for the provision of conciliation services only for the equality enactments and specifically not under the Human Rights Act. The Government might show some give in the interests of human rights and conciliation. Perhaps the Minister can offer some conciliation in response to the amendment. She shakes her head, but I am sure that her response to my arguments will be conciliatory. Who knows, I may even withdraw the amendment if she can offer me some comfort.
The main point is that it has been questioned—particularly with regard to the view of the Joint Committee on Human Rights—whether, under this Bill and the previous one, the commission should allow legal assistance to be given in human rights-only cases. The Government have argued that that would not be right. The Joint Committee accepted that in its report published in the last Session, when I was not a member of it, and the Minister will note that I do not seek to make that point by way of an amendment. The Joint Committee’s view, given in its report on the previous Equality Bill, was that that was a quid pro quo and the general human rights duties of the commission might well be thought to extend to enabling conciliation to ensure that people understand, and can secure protection of, their human rights. For that reason, it seems to be in keeping with the general duties of the commission for it to be able to provide conciliation in such areas.
Given that the alternative to legal action is conciliation and that part of the commission’s role, as clause 9 states, is to
“promote understanding of the importance of human rights . . . encourage good practice in relation to human rights . . . promote awareness, understanding and protection of human rights, and . . . encourage public authorities to comply with section 6 of the Human Rights Act 1998”,
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it would seem that conciliation would naturally flow within that role, without breaking the Government’s rule that the commission should not aid individuals in specific legal action.
Will the Minister consider providing such a facility for the commission? It would be a more balanced approach than that in the Bill. I am not entirely clear about the Government’s arguments against giving the commission that power. Perhaps it is best if I wait to hear what they are and then seek to catch the Minister’s attention so that I can intervene and probe further, if necessary.
The Minister for Women and Equality (Meg Munn): It is good to see you in the Chair again, Mrs. Anderson. I thank the hon. Gentleman for the amendment and will explain the scope of the commission’s power to arrange for the provision of conciliation services.
Conciliation is an important function of the commission. In an ideal world, litigation would be the last resort for equality proceedings. Disputes can often be settled through conciliation in less time, for less cost and with less disruption to the lives of the people involved. However, we believe that human rights proceedings should not fall within the scope of the commission’s conciliation work, for three main reasons.
First, the nature of proceedings under the Human Rights Act is that they are brought against a public authority, often an arm of government. They are usually brought by way of an application for judicial review by an individual or group of individuals, who must, of course, satisfy the victim test. The enactments specified in the clause, in relation to which the commission may arrange conciliation services, are civil proceedings in private law. Human rights proceedings, in contrast, are public law proceedings.
Such proceedings do not have the same absolute standard of legal conduct as found in the equality enactments. Instead, the court is asked to review the conduct, decision or policy of the public authority to assess whether it respects the framework of rights laid down by the Human Rights Act. It may also be asked to assess whether the public authority has acted in a way that is not irrational or unreasonable. Such a review could not appropriately be carried out in conciliation, especially when the parties are likely to be of unequal strength, as in the case of an individual and a public authority.
Secondly, it is good practice for public authorities to have procedures available whereby those who are unhappy with the authority’s conduct or decision may seek a review within the organisation. Hon. Members will be aware of other enactments that require complaints procedures and so on to be in place. That is not only good practice; the public authority can save the legal costs of fighting an action in court if it can, within the organisation, provide a suitable means by which a complainant can achieve redress. If public authorities do not put such procedures in place—the promotion of the procedures would fall within the
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commission’s duty to promote good practice in relation to human rights—a further external conciliation procedure is likely to add little value.
Finally, that brings me back to our decision that the CEHR should not be asked to support litigation arising solely under the Human Rights Act 1998. We are concerned that a power to support human rights litigation could overload the commission, with the need to sift through many and varied applications for support.
Mrs. Eleanor Laing (Epping Forest) (Con): I thank the Minister for giving way so that I can make my recurrent point again. She made the point herself that conciliation is usually a much less costly and disruptive method of settling a dispute than full court proceedings. Under the 1998 Act, the costs and number of court proceedings have escalated massively, thereby placing a burden not only on the public purse but generally, and putting much more strain on the court system. If clause 27 included the 1998 Act, as the Liberal Democrats, unusually, correctly suggest—it is a great pleasure to support one of their amendments for once—it would have the very good effect of saving not only public money but other money that might be spent on litigation.
Meg Munn: I thank the hon. Lady for her intervention and refer her back to what I was saying: the commission will be in a position to promote good practice in relation to human rights, and part of that good practice is that public authorities should have complaints procedures and so on. As I said, many organisations are required to do so under legislation. My background is in social services, so I am aware that the Children Act 1989 brought in complaints procedures in that regard. Complaints procedures are associated with other enactments. There are expectations that public bodies will have mechanisms to enable concerns and conciliation issues to be dealt with by the organisations themselves.
There is a concern about cost, and I am sure that the hon. Lady will be pleased to support that aspect of my argument. If the authorities can deal with the issue, that will not only save a cost to the commission; I genuinely worry that if human rights issues were brought to the commission in the way suggested, there could be a problem with the amount of work involved. If a concern can be resolved within the public authority, that is helpful to the individual who raised it. Furthermore, because the concern is dealt with in-house, it is much more likely to have an effect on the policies and procedures of that organisation and, we hope, avoid other users of the services, whatever they may be, experiencing the situation that caused the original individual to have concern about their human rights in the first place.
Under the amendment, the wide range of human rights proceedings that could be subject to conciliation would make the coherent and cost-efficient provision of such a service difficult. As hon. Members know, there is a huge range of public bodies. Whereas a health trust or local authority, for example, dealing with complaints about its service provision, has
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expertise and detailed knowledge of its policies and procedures, the commission, if we allowed it to provide the suggested conciliation service, could be dealing with a range of issues on which it was neither particularly expert nor able helpfully to suggest resolutions. The commission’s resources are limited, as the hon. Lady and the hon. Member for Oxford, West and Abingdon (Dr. Harris) know, and I am sure that we will have more discussion on that. We do not believe that the proposal in the amendment would offer good value for money.
I should like to reaffirm my strong support for conciliation as a way of reducing the need for disruptive and expensive litigation. Nevertheless, the nature of human rights proceedings means that they would not be suitable for inclusion in the scope of the commission’s conciliation work. I look forward to a conciliatory gesture from the hon. Gentleman in withdrawing his amendment.
Dr. Harris: I am genuinely grateful to the Minister for her explanation. I see her point about the need for public authorities not to be lulled into not making provision for conciliation services because somebody will do it for them. However, that argument is limited because public authorities ought to do it regardless of whether help with conciliation is being offered. It is worth reading what the Joint Committee on Human Rights said in its 16th report of 2004-05 in response to the sort of arguments that the Minister has just made. It concluded that an ability to provide conciliation is consistent with the commission’s duty under clause 9(1) to
“promote understanding of the importance of human rights.”
It went on:
“If the Government is able to provide reassurance that the Bill overall reflects its own intention”—
from the White Paper, I think—
“that the Commission will provide ‘tools and concepts to help find solutions in areas where rights may conflict’, we would regard the restrictions related to conciliation in clause 29 with more equanimity. We do consider, however, that, should the restriction be lifted by order on legal assistance in mixed cases when the equality element has fallen away, the Commission should be able to provide formal conciliation services in such cases, and the Bill should accordingly be amended to provide for this.”
I did not deal with that matter in my previous remarks, and it is not clear whether it is best dealt with here or in the next clause.
Meg Munn: Such tools and concepts are exactly the sort of issue that the commission may want to consider in promoting conciliation. I am happy to consider the extent to which the duties in this clause and the Bill generally will allow the commission to do more than that, and I shall write to the hon. Gentleman about that. We shall come to the matter of cases that are jointly funded.
1.15 pm
Dr. Harris: I am grateful to the Minister for her response on the commission’s ability to promote conciliation as one of the
“tools and concepts . . . where rights may conflict.”
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The reference for that is paragraph 6.5 of the Department of Trade and Industry’s document, “Fairness For All: A New Commission for Equality and Human Rights”.
On the other question of actions, cases or claims involving equality and human rights, the Minister will know from debates in the House of Lords that the next clause deals with whether a human rights claim can continue when a joint claim under equality enactments and human rights has been started and the commission is involved. I am happy, with your permission, Mrs. Anderson, to deal with that under this clause; I flag it up now because it may be helpful.
If the Lord Chancellor gives permission for that help to continue, the question is whether it will extend to conciliation if that is the alternative to litigation. That would be logical, and I will make the point more clearly in our debate on the next clause.
In respect of what the Minister said about having another look at how the commission can best play this important role, in the spirit of conciliation I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 3, in clause 27, page 15, line 40, leave out
‘whether it is unreasonable for a landlord to withhold’
and insert
‘a landlord’s reasonableness in relation to’.
No. 26, in clause 27, page 15, line 41, after ‘dwelling’ insert ‘in England or Wales’.
No. 27, in clause 27, page 15, line 43, at end insert—
‘(2A) The Commission may make arrangements for the provision of conciliation services for disputes about whether—
(a) it is unreasonable for a landlord of a house (within the meaning of the Housing (Scotland) Act 2005 (asp 00)) in Scotland to withhold consent to the carrying out of work in relation to the house for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence, or
(b) any condition imposed by such a landlord on consenting to the carrying out of such work is unreasonable.’.
No. 28, in clause 27, page 16, line 1, leave out ‘and (2)’ and insert ‘to (2A)’.—[Meg Munn.]
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Legal assistance
Amendments made: No. 29, in clause 28, page 16, line 40, after first ‘proceedings’ insert ‘in England and Wales’.
No. 4, in clause 28, page 16, line 41, leave out
‘whether it is unreasonable for a landlord to withhold’
and insert
‘of a landlord’s reasonableness in relation to’.
No. 30, in clause 28, page 16, line 44, at end insert—
‘(2A) The Commission may assist an individual who is or may become a party to legal proceedings in Scotland if and in so far as the proceedings concern or may concern the question whether—
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(a) it is unreasonable for a landlord to withhold consent to the carrying out of work in relation to a house (within the meaning of the Housing (Scotland) Act 2005 (asp 00)) for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence, or
(b) any condition imposed by a landlord on consenting to the carrying out of such work is unreasonable.’.—[Meg Munn.]
Mrs. Laing: I beg to move amendment No. 83, in clause 28, page 17, line 6, after ‘assistance’, insert
‘including, but not limited to, meeting the costs of any other party to any legal proceedings in the event that the individual assisted is not successful in his claim’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 92, in clause 28, page 17, leave out lines 15 to 26.
No. 93, in clause 28, page 17, line 33, leave out ‘(6) or’.
No. 94, in clause 28, page 17, line 34, leave out from ‘description’ to ‘or’ in line 36.
Mrs. Laing: Amendment No. 83 is similar in its effect to the amendments to clause 17, under which we also discussed amendments to clauses 28 and 29. This amendment is more specific in amending the part of clause 28(3) which deals with legal assistance.
The reason for the amendment is that someone or some body could have received assistance to bring a case under the legislation; if the case was thrown out the person against whom the case was brought may have incurred very considerable costs, not only in legal advice but possibly in other practical ways. That person or body, having succeeded in defending the claim brought against them, would then be in a very much weaker financial position, which is simply not fair.
The Bill aims to achieve fairness and equality in all that it affects. Therefore, as I said in our discussion on clause 17, as a small business, charity or other body without the resources enabling it easily to employ legal advice may be affected, it is only fair for the commission to have the power that we suggest in the amendment.
This morning, the Minister accepted the principle that I raised in relation to clauses 17, 28 and 29, and I accepted that the word “person” means not just a human individual but a legal persona. However, if we accept that a case may be brought by or against a legal persona other than a person, that persona—I am running out of words because I am trying to distinguish between person, legal person and body, and having already conceded the point that we do not need the words “body” or “organisation”, it would be inconsistent of me to use those words.
James Brokenshire (Hornchurch) (Con): Will my hon. Friend give way?
Mrs. Laing: Yes!
James Brokenshire: If an individual enters into litigation, suing a small business or sole trader, and the case is not found, in normal circumstances the court
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would award costs against the unsuccessful party. If an individual who was unsuccessful in their claim could not pay those costs, the small business or individual trader would have to meet them. Does my hon. Friend therefore agree that it would seem fair that if the commission supports an individual’s case financially, it should also incur the risk if the case is unsuccessful?
Mrs. Laing: My hon. Friend is absolutely right and puts the matter succinctly. I thank him for assisting me in my vocabulary. That is precisely the point. The situation as it currently stands is unfair, because someone can have a case brought against them, succeed in defending it, and then find that they cannot recover the costs, particularly if the person who brought the case has no money, which is often the case if it is an individual rather than a corporate body. It is therefore necessary that the words that we suggest in the amendment be added to the clause.
Dr. Harris: Amendments Nos. 92 to 94, which I tabled, open up the question that was touched on during the debate on the previous clause and seek to remove subsections (5)(b) and (6) and references to subsection (6) in subsection (8).
The Committee will be aware of concern that in legal proceedings that have an equality enactment component and a Human Rights Act 1998 component, the commission can, under this clause, give assistance to the action by virtue of the equality component. The question therefore arises as to what happens when, as is stated in subsection (5)(b)
“the proceedings cease to relate to a provision of the equality enactments”.
The same subsection states specifically that
“assistance may not be continued under subsection (1) in respect of the proceedings (except in so far as it is permitted by virtue of subsection (6) or (7)).”
Subsection (6) relates to the discretion of the Lord Chancellor, who may by order disapply the subsection that I have just read out and enable the commission to continue to give assistance under subsection (1) in legal proceedings which:
“(a) when instituted, related (wholly or partly) to a provision of the equality enactments,
(b) have ceased to relate to the provision of the equality enactments, and
(c) relate (wholly or partly) to any of the Convention rights within the meaning given by section 1 of the Human Rights Act 1998 (c. 42).”
That looks like a compromise between not allowing the assistance to be given and providing for discretion. The intention of the amendments that I have tabled, even if they are not perfect, is to seek to persuade the Government to move from that position and say that, generally speaking, it will be possible for the commission to continue to provide assistance, as long as it sees that there is good cause to do so. That matter has been subject to the views of the Joint Committee on Human Rights, which, in its 16th report of the 2004-05 session, the only published report on the Equality Bill—and that refers to the previous Bill—had something to say about it.
The Joint Committee said, in paragraph 20, that it recognised that
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“The Government has accepted to some degree our argument that the CEHR should be able to continue to support ‘mixed’ cases . . . when equality elements have fallen away.”
It goes on to mention the power that the Lord Chancellor had in that respect, saying:
“We accept the principle as a reasonable compromise in relation to mixed cases but invite the Government”—
as I am doing now—
“to reconsider the limitations in the . . . clause 30.”
I wonder whether the Government would be willing to do so, since they have come some way with regard to the provision on the Lord Chancellor’s discretion. If proceedings have been initiated and the commission still feels that there is value in pursuing the case, even though the equality components have fallen away, it should not be at the discretion of the Lord Chancellor, or anyone else, as to whether it can continue to provide support. In those circumstances, it is not clear from the phrasing of the Bill that conciliation services might still be offered in those cases. We dealt with that before.
It might be sensible, once the equality provision has fallen away, for there to be some way in which the commission can, given that it is already involved in a legal case, help move away from legal action towards a conciliation procedure. The Minister may wish to consider whether similar powers should be available to the commission to provide conciliation in respect of Human Rights Act cases, even where the equality enactment issues have fallen away. It would unnecessarily tie the commission’s hands to say that the Lord Chancellor might let it continue on the litigation path, but the drafting of clause 27 is so strict that it would not allow it to move into a conciliation process in which it was directly assisting.
The Chairman: Order. I remind the hon. Gentleman that we are discussing clause 28 and we have already dealt with conciliation. He seems to be addressing his remarks to clause 27. If he could restrict them to clause 28, I would be grateful.
1.30 pm
Dr. Harris: I shall seek to do so. I said in discussion that, to avoid a stand part debate on clause 27, I would seek carefully, within order, to link the matter at hand with the amendments to which I am speaking now. Perhaps I should deal with that on the stand part debate on clause 28. I think that I have made the case and I do not need to repeat it.
I am sorry if I was not wholly in order. However, I hope that it is in order for the Minister to say whether, in cases where, under clause 28, the equality enactments have fallen away and the commission is, by virtue of subsections (5)(b) and (6), still involved, it will be possible for it to use conciliation services as an alternative, given that it is already involved in giving legal assistance. I hope that the Minister will respond to that.
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