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Baroness O'Cathain had given notice of her intention to move Amendment No. 88:

Page 26, line 13, at end insert ("and for these purposes the Council may, where it deems it appropriate, initiate or have recourse to independent research").

The noble Baroness said: My Lords, the point raised in the amendment, which concerns the NDC, was covered by my noble friend the Minister in his comments on the previous amendment. It encapsulates the point I have made before that the NDC will also need to be informed and must be able to initiate and access independent research in support of its work. In the last part of the speech of my noble friend the Minister I think I heard him say that it would be able to commission independent research. Therefore, I shall not move the amendment.

[Amendment No. 88 not moved.]

[Amendments Nos. 89 to 91 not moved.]

6 p.m.

Lord Lester of Herne Hill moved Amendment No. 92:

After Clause 34, insert the following new clause:

("National Disability Council: actual or prospective complainants

.—(1) The Council may assist, in accordance with the provisions of this section, actual or prospective complainants under this Act.
(2) Where, in relation to proceedings or prospective proceedings under this Act, an individual who is an actual or prospective complainant applies to the Council for assistance under this section, the Council shall consider the application and may grant it if they think fit to do so on the ground that—
(a) the case raises a question of principle, or
(b) it is unreasonable, having regard to the complexity of the case or the applicant's position in relation to the respondent or another person involved or any other matter, to expect the applicant to deal with the case unaided.
(3) Assistance by the Council under this section may include—
(a) giving advice;
(b) procuring or attempting to procure the settlement of any matter in dispute;
(c) arranging for the giving of advice or assistance by a solicitor or counsel;
(d) arranging for representation by any person including all such assistance as is usually given by a solicitor or counsel in the steps, preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;
(e) any other form of assistance which the Council may consider appropriate,
but paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.
(4) In so far as expenses are incurred by the Council in providing the applicant with assistance under this section the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules or regulations) shall constitute a first charge for the benefit of the Council—
(a) on any costs or expenses which (whether by virtue of a judgment or order of a court or tribunal or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given, and
(b) so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

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(5) The charge conferred by subsection (4) is subject to any charge under the Legal Aid Act 1988, or any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986, and is subject to any provision in either of those Acts for payment of any sum to the Legal Aid Board or into the Scottish Legal Aid Fund.
(6) In this section "respondent" includes a prospective respondent and "rules or regulations"—
(a) in relation to county court proceedings, means county court rules;
(b) in relation to sheriff court proceedings, means sheriff court rules;
(c) in relation to industrial tribunal proceedings, means regulations made under paragraph 1 of Schedule 9 to the Employment Protection (Consolidation) Act 1978.").

The noble Lord said: My Lords, I move this amendment even though it does not stand in my name in the Marshalled List, but in those of several other much more distinguished noble Lords. I should own up to the fact that the drafting of the amendment owes a great deal to the sex discrimination and race relations Acts. I realise that much of the ground of this amendment has been covered already in debating Amendment No. 86A. Nevertheless, I move the amendment because it raises narrower and somewhat different issues.

This amendment has the limited and important purpose of empowering the council to assist individuals in preparing and presenting their cases and conducting legal proceedings under the Acts. Under the amendment the council will be empowered, but not required—and I emphasise "not required"—to exercise this limited power only in two kinds of case. The first is in raising matters of public importance, including legal interpretation of the Bill and, secondly, in cases where individuals have no other source of assistance.

Nothing in this amendment empowers the council, as distinct from the courts of the land, to decide what the law is; and neither, if I may say to the Minister, did Amendment No. 86A do any such thing. This amendment quite clearly does not give any law-making powers to the council. Unlike Amendment No. 86A, this amendment will not make the council in any way similar to the EOC or the CRE except for this power. It confers no power to investigate nor to carry out research or education. It does not prevent the Government, in the words of the noble Lord, Lord Campbell of Croy, from being the lead body. It will not create a proselytising body.

The amendment is a slightly more limited version of the similar power conferred on the EOC by Section 75 of the Sex Discrimination Act 1975. Subsection (4) of the clause would enable the council to claw back costs or expenses paid to the applicant by the respondent.

I suggest that there are two main arguments in favour of this modest amendment. The first is based on the basic right of access to justice. The second is based on the need for complex social legislation of this kind to be implemented in a sensible and practical way, avoiding unnecessary conflict and misguided and costly litigation.

If Parliament enacts legislation conferring civil rights and imposing obligations on individuals and companies, it is essential that what is enacted should be implemented in practice. Everyone in this House will

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agree with that. It is also essential that everyone should enjoy effective access to tribunals and courts in the determination of their civil rights and obligations. That right of effective access to justice is so elementary and important that it is guaranteed on the international plane by Article 6 of the European Convention on Human Rights. There was the case of Ayre v. Ireland where the court decided that in complicated civil cases there is a positive obligation on the state to ensure effective access to justice. That obligation binds this country as much as Ireland.

Complaints of disability discrimination in the employment field will be adjudicated on, as noble Lords know, in industrial tribunals where legal aid is still not available. The noble and learned Lord, Lord Archer of Sandwell, has already explained the problems of appearing unrepresented at industrial tribunals. Although I accept that in the ordinary run-of-the-mill unfair dismissal case, an individual can perfectly well appear without the benefit—sometimes dubious benefit—of legal representation, everyone who practises in the discrimination field in complicated cases will, I believe, accept that those cases require skilled representation on both sides.

Complaints of discrimination in the non-employment field will be dealt with in county courts and sheriff courts where legal aid is available, but only to the poorest of the poor. That is one important reason why Parliament has empowered the existing commissions to give assistance to those complaining of sex and race discrimination so that they are able to enjoy effective access to justice. Although the Minister has said that much has changed since the mid-1970s, I am sure he will agree that effective access to justice is as important in 1995 as it was in 1975.

I come to my second argument. It is equally important for employers and the providers of goods, services and facilities, as well as for those who suffer from unlawful discrimination, that the legislation should be interpreted and applied in a wide and practical way by courts and tribunals and ordinary men and women. One of the great advantages of the council's power to assist would be that it would enable an expert administrative agency to take up test cases raising serious points of principle, while denying assistance to misconceived, frivolous or relatively trivial cases. Such a limited power assists not only individuals but also tribunals, courts and employers or service providers.

If I may say so without in any way being self-regarding, I have had 30 years' practical experience as an advocate in the discrimination field. I really know how useful it is to have an expert body able to sieve the wheat from the chaff in this way. I spend much of my time in cases which are assisted by the EOC, advising that body that cases are hopeless and should not be pursued. I am sure that lawyers perform a prophylactic role of that kind.

The Minister referred to the price tag and I come to that straightaway. The EOC and the CRE may be accused of many things, but no one can criticise them for being extravagant or imprudent in the exercise of their comparable powers of assistance. Last year, the EOC received 1,629 applications for legal assistance. It

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granted assistance in 108 cases. If my arithmetic is right, in only 6.6 per cent. of the cases was assistance granted. Public expenditure under this head amounted for the whole year to £330,000. That is not a large sum to cover all assisted legal proceedings from industrial tribunals and county courts, all the way to this House.

I am still dealing with the price tag. The statistics for the CRE, which has a significantly larger budget, are roughly comparable. It received a larger number of cases. It spent £882,000 on assisting 228 cases, which was 11.8 per cent. of 1,937 applications.

In answer to a point made by the noble Lord, Lord Renton, earlier, neither of those bodies has had to create any expensive regional legal aid offices in order to deal with this in any expensively bureaucratic way. The price tag is the tag that I have just referred to—not huge in the context of this social legislation.

What the statistics do not reveal is that these agencies provide a huge amount of valuable advice and assistance, both in exercising their formal power and also in acting under the general power, to a wide cross-section of society. They do so in cases which never ripen into adversarial litigation because they are sensibly settled by informal conciliation and dispute resolution. What begins as a request for legal assistance often results in the avoidance of legal conflict in this way. But in my view what is essential is that the council should have this limited power, not only to be used carefully and sparingly in legal proceedings, but also to be used in this wider way.

Finally, I make this general point. There is surely no good reason to fetter effective access to justice for disabled people who are victims of unfair, unreasonable and unlawful discrimination, on the ground of their disability, compared with the victims of sex and race discrimination or, for that matter, the victims of religious discrimination in Northern Ireland. Surely, I ask rhetorically, all those categories of victims are entitled to the equal protection of the law and to equal access to legal remedies. Surely applicants should be able to obtain advice and assistance as do respondents; otherwise I am concerned that a well-aimed Bill could result in real injustice and could even result in complex cases in breaches of Article 6 of the European Convention on Human Rights, and the principles enunciated in the Ayre case. We should not enact a law which is unlikely to be enforced. This modest amendment would make it much more likely that the law would indeed be translated into practical reality. I beg to move.

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