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Lord Mackay of Ardbrecknish: My Lords, I can well understand why the proposers of the amendment passed it in the general direction of the noble Lord, Lord Lester, who has considerable expertise in these matters. I suppose that in the midst of his speech and while telling us of his expertise, he was, in these post-Nolan days, declaring his considerable financial interest in this aspect of the law—

Noble Lords: Order!

Lord Mackay of Ardbrecknish: My Lords, this amendment—

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Lord Lester of Herne Hill: My Lords, I hope that the Minister will, on reflection, withdraw the implication of that remark.

Lord Mackay of Ardbrecknish: My Lords, if the noble Lord thought that there was an implication, I must tell him that there was none. I was just pointing to the fact that he is known to be very successful in this general field and that I can therefore understand why the four Peers who put their names to this amendment decided to ask him to move it. If I have said anything to which the noble Lord takes exception, I withdraw it.

This is simply a subset of the argument that we have just had, and I am not going to rehearse for the third time my arguments on the commission and so on. That has already been done.

The amendment seeks to insert a new clause setting out the circumstances in which and the categories of people to whom the National Disability Council could provide assistance. It stems from two basic thoughts: that disabled people will require legal assistance and that there will be a need for test cases to be taken. I have already explained the reasons why the Government believe that the advice and support services that we propose, together with ACAS, will be the best means of providing disabled people with the assistance they will need to secure their new rights.

The noble Lord, Lord Lester, took me up on an earlier point by saying that the amendment gives no new law-making powers to the NDC. That is not what I implied in my previous speech. It is true that the amendment gives no law-making powers to the council, but it gives the council a power to choose which cases to take to court. Inevitably, there will be a temptation for the council to choose those cases offering the best chance of widening the scope of the legislation in areas where there is room for interpretation. That is what I mean when I say that this amendment, like the previous amendment, would give the council a role in determining how the law would apply. I should prefer these matters to be left to government and eventually, if the matter has to come to regulations, to Parliament. That is the point that I was making and I make it again.

Turning to the amendment, it makes provision—

Baroness Seear: My Lords, may I ask whether the noble Lord agrees that he did not in the least intend to imply in the previous debate, as a great many noble Lords thought that he did, that there would be new law-making powers for this body which it does not have and which would be usurping the position of the courts? Are we now quite clear that the noble Lord did not mean that?

6.15 p.m.

Lord Mackay of Ardbrecknish: My Lords, I think that I have made my position clear. I do not want to revisit the argument that we have just had and settled. I hope that the noble Baroness now understands the position. If I did not make myself clear, I hope that I have now done so.

As I was about to say, this amendment makes provision for assistance to be granted to cases which raise a question of principle. Members opposite will

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doubtless think that a commission is needed to take test cases to court to establish precedents. However, test cases will have little general application in the area of disability. The fact that we use the single word "disability" should not mislead us into thinking that disabled people form a single group with common characteristics. That is not the case, as my noble friend Lord Campbell of Croy argued convincingly from a position of considerable strength and knowledge in the previous debate. What an elderly person with a hearing impairment might need to access a service is completely different from what a person with a sight impairment might need to access the same service. Even with similar impairments, there will be significant differences in effect. Somebody encountering mobility problems in his sixties faces very different challenges from someone who is born with mobility difficulties. While a central body taking test cases to a court may be of help in setting precedents on behalf of women, there is little scope for it to do the same for disabled people who form such a diverse group.

As I have already indicated—I should like to underline this point for the noble Baroness, Lady Seear—should it become apparent that the policy intention or the practical advice needs to be clarified, we believe this should be undertaken by government and Parliament based on the advice of the National Disability Council. The regulation-making powers and the provisions for codes of practice, are designed to provide the Government, Parliament and the NDC with the flexibility to do this. The sex and race legislation does not contain similar powers, and does not require anything like the amount of change that this Bill will require. It is right that the boundaries of this legislation should be fixed by government and Parliament.

It is unrealistic to think that the provisions of this amendment could work in tandem with the advice and support services we have proposed. The notion that only a limited number of cases would apply for this kind of assistance is mistaken. Rather than going to the advice and support service as a first course, people would naturally go to the NDC—and they would be encouraged to do so. The NDC would then be faced with the huge task of examining and filtering every allegation without the benefit of local knowledge. That would be totally impractical and would run the risk of greatly protracting the length of time needed to reach a satisfactory solution to a claim of discrimination. I should point out that the Equal Employment Opportunities Commission in the United States should serve as a warning to us here. In 1994, it had a backlog of more than 85,000 cases which was an increase of about one-third on the previous year.

If these proposals were successful, we would also increase the risk of creating a backlash. I explained that previously and I have no desire to go over the same argument. Perhaps I may describe the provisions as a "back-stop" for the people who want a commission. The amendment draws back a little from the powers that they would have given a commission under the previous amendment, but, for exactly the same arguments as I used previously and for those which I have just brought before your Lordships' House, I suggest that the

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amendment is wrong. I hope that the noble Lord will withdraw it, but, if he does not, I hope that my noble friends will support me in the Division Lobby.

Lord Lester of Herne Hill: My Lords, I think that the Minister was suggesting that in some way I might have been motivated in what I said by self-interest. I am glad that the Minister has now withdrawn that suggestion and shall not therefore deal with it further.

However, I should like to deal with some of the points that the Minister has made. Almost all of his objections would apply with equal force to the power to give assistance which is already possessed by the Equal Opportunities Commission and the Commission for Racial Equality. I had thought that governments of both main parties had for two decades or more supported the notion that there should be effective access to justice by the victims of sex and race discrimination. The Minister has not explained to the House why there should be unequal access to justice as regards the victims of disability discrimination, except to suggest that somehow the problems of the victims of disability discrimination are different.

I suggest that, as far as the law is concerned, there will be difficult problems about the legal meaning of the definition of "unlawful discrimination" and about the scope of the many exceptions contained in the Bill. Again, speaking from practical experience, I believe that industrial tribunals, sheriff courts and the county courts will have great difficulty making sense of a Bill which confers on them such wide powers of interpretation. The Minister said that he would prefer the Government and Parliament to decide the law. Of course, the Government and Parliament are now deciding the law, but in the end the only bodies in this country to decide how to interpret the law are the courts and tribunals. It is no use leaving the courts and tribunals with misconceived, sometimes frivolous and unsupported cases, which are badly argued, leaving inexperienced industrial tribunal chairmen and chairwomen and sheriff and county court judges without the assistance that they need in complicated discrimination cases. In the amendment, there is no question of trying to create a commission. There is no hidden agenda. The purpose is merely to try to secure more effective access to justice. I submit that test cases will be as important under this Bill as they are under existing discrimination legislation.

The Minister has also not referred to, nor would I expect him in fairness to do so, to the point I raised about Article 6, paragraph 1 of the European Convention on Human Rights and the positive obligation that that places upon the Government and Parliament to ensure effective access to civil justice. I should be grateful if the Minister could reflect upon that point. He might find it convenient to write to me about it in the comparatively near future.

The Minister put forward one further argument which I hope he will, on reflection, agree is entirely without merit. He suggested that the proposed power would delay legal proceedings and lead to an American-style backlog. That is a bad point because the equivalent power in the Sex Discrimination Act in no way affects the short time limits within which applicants must bring their cases. They still have to bring them within three

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months in industrial tribunals and within six months in county courts and sheriff courts. This power would do nothing to prolong the period within which cases had to be brought or within which they would have to be fought.

I hope, therefore, even at this last moment—the Bill's 11th hour—that the Government might think again that a narrow and limited power with a mean Treasury-driven budget for legal assistance, to ensure no extravagance—the present budgets of the EOC and the CRE are controlled by the Treasury and are limited and mean—with the Government controlling the purse strings in a way they already do, and find it within themselves to accept this amendment, or something even narrower, to allow assistance to be given in this way. Otherwise, Cassandra-like, I predict that one day not very long from now an applicant will say, "I have a very complicated case. I cannot do it myself. I cannot get legal assistance, and that is a breach of my Article 6 rights". That is something I do not wish to see, even though the Minister might think that I would earn money from representing such a person before the European Commission and Court of Human Rights.

Your Lordships have only recently voted on a broader amendment which incorporated part of this amendment. I do not wish to tax your Lordships' patience by seeking your opinion. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 [The National Disability Council]:

[Amendments Nos. 93 to 95 not moved.]

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