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Lord Hylton: I submit that my Amendment No. 140 is superior to Government Amendment No. 139 on two grounds. First, it is slightly more precise in that it limits investigations to breaches of the Human Rights Act 1998 and to offences arising under Clauses 61 and 62

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of this Bill. That might well be far enough to go, at least during the first two years of the new commission's existence. I should add that Clauses 61 and 62 are specific to Northern Ireland, concerning as they do discrimination and unlawful oaths.

Secondly, my amendment has teeth in it, unlike that of the Government. These would enable it to compel the attendance of witnesses and the production of documents in ways similar to those that have always been available to the High Court. My understanding is that the Fair Employment Commission and the ombudsman already have similar powers at the present time. I cannot see how the human rights commission can be sure of properly investigating uncooperative people without such powers. I believe that the comparable commission in Australia has such powers but in practice has been able to use them only sparingly.

If on consideration the Government conclude that some saving for national security in Northern Ireland is required, I should be willing to consider a further amendment. I commend my amendment to the Committee.

Lord Archer of Sandwell: My noble friend has again been handsomely forthcoming. I hope that he will not think that some of us who are pressing him to go further are simply being tiresome. I appreciate the argument that it might be counter-productive to press the matter further than the agreement goes. I take that point fully on board. Perhaps I may suggest that when my noble friend comes to reflect on this matter there is an argument on the other side; namely, the disaster that would follow if it transpired that the commission was ineffective. It needs to have an effective path to investigate if it is to fulfil its other functions.

Let us briefly examine three of its functions. It is there to provide advice to the Secretary of State and to the executive committee. It is difficult to see how it can do that effectively unless it can investigate where the breaches are occurring. Otherwise, the advice is likely to be concerned not with the real world but with a somewhat academic exercise--I say academic exercise, but I must break myself of a habit of calling something academic when I mean that it does not really matter. I apologise to my academic friends. It would be a somewhat theoretical exercise.

Its second purpose is to give assistance to individuals. Again, that assistance is presumably with regard to pursuing specific complaints. How is it to decide what complaints should be pursued, and how, if it cannot investigate effectively?

Thirdly, it is to promote understanding and awareness of the importance of human rights. That can be effective only in relation to matters where human rights are being infringed or denied. This is not about understanding of a set of jurisprudential principles; it is about respect for the practical needs and feelings of individuals in everyday life.

Those purposes embrace a wide spectrum of situations. Some will require only a very minor investigation: they may require listening to someone making a complaint or asking someone questions to

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which the answers will be readily forthcoming. They may entail a much wider investigation, requiring people to give advice, information and assistance. I hope the powers would be used with restraint. Unless they are available where they are needed, it may well transpire that the commission will be ineffective. I do not say that dogmatically. I hope that the noble Lord, Lord Hylton, will not press his amendment tonight, but that is a question for him. This is a matter on which we should all reflect; the arguments are by no means all one way.

9.15 p.m.

Lord Lester of Herne Hill: I speak in the same spirit as all who have spoken so far in the debate. We are all trying to make these provisions in the Bill effective without going further than is necessary.

I greatly welcome Amendment No. 139, which shows precisely the open-minded attitude that Ministers have indicated in this Chamber as regards this part of the Bill. The problem with the amendment is that, although it empowers the human rights commission to,


    "conduct such investigations as it considers necessary or expedient",
it does not spell out any specific powers that are needed when the going gets tough.

I have hesitations about giving any body subpoena powers. We did it in respect of the equal opportunities commissions, the commissions for racial equality, the fair employment commission and, I think, the Ombudsman for Northern Ireland. Those subpoena powers have been carefully drawn so that they apply only in cases of suspected unlawful conduct, and they are subject to judicial control. In other words, there has to be, where necessary, an order from a court of competent jurisdiction before the powers can be exercised. Those safeguards seem to me to be essential. As the noble Lord, Lord Hylton, said, bodies that have these powers have rarely found them necessary in practice. The existence of the powers usually induces sensible bodies and individuals to co-operate without the powers having to be exercised. I can think of scarcely a single instance since the mid-1970s when subpoena powers have been necessary, but their existence in carefully defined circumstances has undoubtedly promoted the effectiveness of an investigation.

If we resist the spirit of Amendment No. 140 and do nothing to add to the provisions in Amendment No. 139 during the Bill's passage through this House, a strange situation will result. The equality commission, which will inherit the powers of the existing equality agencies, will have subpoena powers under the fair employment, sex discrimination and race relations legislation. Under the terms of Clause 61, religious discrimination by a public authority is not a matter which comes within the remit of the equality commission. A public authority may be discriminating on religious grounds in breach of Clause 61, but there are to be no subpoena powers where there is suspected unlawful conduct in breach of that clause, yet subpoena powers are to be enjoyed by the equality commission where there is suspected unlawful religious, sex or racial discrimination by an employer. I do not believe that that makes much sense. I believe that we should try to produce rational and consistent

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powers to make absolutely sure that there are safeguards for those who are being investigated and we do not make martyrs of people by giving excessive powers or inadequate judicial protection.

In short, I strongly support the Government's amendment and also the amendment moved by the noble Lord, Lord Hylton. However, I believe that further consideration should be given to ways of tightening up the provision so that the human rights commission is endowed with no more powers than are strictly necessary to ensure the effectiveness of its investigations. Obviously, to have access to relevant information is crucial, and when dealing with a recalcitrant, cantankerous, obstinate or stupid respondent the commission requires reserve powers to deal with the matter. One hopes that those powers will never be exercised, but if they are not put into the Bill at all one may produce an ineffectual commission which will be a tragedy for the whole enterprise.

Lord Molyneaux of Killead: In all such matters I bow to the sound judgment of the Minister and other noble Lords who are learned in the law. One wonders whether the Amendment No. 149 powers undermine to some extent the judiciary in Northern Ireland. Noble Lords with first-hand knowledge of legal matters in Northern Ireland will concede that the Northern Ireland judiciary has been the one solid rock throughout all the decades of troubles.

I agree with the Minister that the Government have an obligation to implement the Good Friday agreement in full. I suggest that there are some serious dangers if they go beyond that into what has been very reasonably proposed by the noble Lord, Lord Hylton. The commission would be under constant pressure to use these draconian powers if Parliament granted them and it would be very difficult for it to resist all-comers. To revert to a point made earlier by the noble Lord, Lord Monson, I am afraid that this may become something of an industry.

As to the matter raised by my noble and learned friend Lord Archer, based on first-hand knowledge of the situation in Northern Ireland in which he has taken a very great interest he will admit that in its previous incarnation the Advisory Commission on Human Rights, which is now to be phased out, has proved to be extremely effective. I am equally optimistic and hopeful about what is proposed in the Bill.

Lord Kingsland: The Opposition support Amendment No. 139 and congratulate the Government on introducing it. As far as Amendment No. 140 is concerned, I am inclined to the view expressed by the noble Lord, Lord Molyneaux, rather than that expressed by the noble Lord, Lord Lester. As time goes by it may well be desirable to put flesh on the generally expressed power to investigate under Amendment No. 139; but we should move towards that in stages and react to the experience of the commission over time.

It strikes me that the drafting of Amendment No. 140 almost produces an institution that mirrors the powers of a court. So trenchant are these powers that, were they

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ever introduced, it is to be hoped that the exercise of them would itself be subject to the human rights provisions.


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