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Lord Lester of Herne Hill: I pay tribute to the Government for tabling Amendment No. 141. Before I come to that may I say in response to the earlier debate that I, too, am a member of the Northern Ireland Bar, which I regard as an enormous privilege. I pay particular tribute to the independence and impartiality of the judges there, who are among the bravest people I have ever had the privilege of knowing. They have managed to uphold the rule of law in terrible circumstances and at great personal deprivation.

I support Amendment No. 141. I wish that we had something like it for the people of England, Wales and Scotland. I say that because I have been depressed to read a ministerial response to a Question for Written Answer in which I asked whether, under the Human Rights Act, the Government would instruct their counsel not to ask for costs except in abusive or vexatious cases brought under the Human Rights Act. The answer was that they intended to instruct their counsel to ask for costs from unsuccessful applicants under that Act. Of course, in Northern Ireland the position would be quite different, because under Amendment No. 141 the human

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rights commission will have the power to give financial assistance for proceedings brought under the Human Rights Act and under the Northern Ireland Act. In the end I hope that we shall find something similar on this side of the Irish Sea so that we can enjoy genuine access to justice here as well.

Subject to clarification from the Minister, it seems to me that Amendment No. 141 is wide enough to cover what is in Amendments Nos. 142 and 143. Amendment No. 141 covers assistance for proceedings involving law or practice relating to the protection of human rights. I take it that that includes proceedings for unlawful religious discrimination by public authorities and everything else which is in Amendment No. 142 or 143. For example, in Amendment No. 143, which is my own amendment, I assume that it will include action contrary to Section 6(2)(e) of the Act--

Lord Archer of Sandwell: I hope the noble Lord will forgive me. I thought that originally. I was somewhat troubled because I believe there is some ambiguity about it. To some extent that was resolved by my noble friend Lord Williams, who said that that was not the Government's intention and that they did not intend to cover the whole area of discrimination.

Lord Lester of Herne Hill: I am grateful. If that is right, speaking for myself, I do not mind whether the equality commission or the human rights commission has the power to grant individuals assistance for access to justice as long as one or other of them has that power. I do not mind if the matter is dealt with by administrative arrangements between each commission and the Government. That seems to me to be perfectly sensible. All I am concerned about is that there should not be a hole in the middle. In other words, any breaches of human rights law, including the equality code, should be capable of being assisted either by the human rights commission or by the equality commission, with suitable dovetailing arrangements to avoid wasteful duplication. Provided that we can get those assurances, it then becomes purely a matter of plumbing of machinery.

The key question is: are individuals, including companies, because of the addition of the word "person" as a substitution for "individual", who are victims of human rights violations--whether of quality of treatment or in other ways--able to be assisted in meritorious cases by a statutory agency? Provided that the answer to that is yes, I would not wish to move Amendment No. 143. That would mean that the Government ensure that that is covered by one means or another and I would therefore be entirely satisfied so far as Northern Ireland is concerned. I will continue to grumble with increasingly cantankerous noises if the Government do not do the same or similar on this side of the Irish Sea.

Lord Williams of Mostyn: It may be that the noble and learned Lord, Lord Archer, misheard me or I did not speak sufficiently clearly. I did say that under Amendment No. 141 it was our intention that the

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commission could assist cases under Clauses 61 and 62 of the Bill. I do not think that there is a hole in the middle. Our amendment is a wide and generous one. I will consider very carefully the points--which are of some technical detail--which the noble Lord, Lord Lester, and the noble and learned Lord, Lord Archer, have put. If we feel that we are not sufficiently astute in our present construction of Amendment No. 141-- I think we are--it does not do any harm to think again.

Lord Archer of Sandwell: Perhaps I too failed to make myself clear. What was troubling me was that the sections that were mentioned were to be confined to public authorities. They do not seem to deal with discrimination by private individuals.

Lord Williams of Mostyn: That is so. I wanted to make it clear that I had referred to Clauses 61 and 62. Amendment No. 141 does not restrict itself to public authorities. I will think quite carefully again, together with the officials who have spent so much labour and time and enormous expertise in considering these matters. If we are wrong--I do not think we are--then we will return to the matter on Report.

Lord Lester of Herne Hill: Before the Minister sits down, could he also include Clause 6(2)(e) and Clause 19 (1)(c) as well as Clauses 61 and 62. I wholly welcome inserting "person" instead of "individual"--I have not spoken to that--and I wholly welcome Amendments Nos. 144 to 148, which seem very sensible.

Lord Williams of Mostyn: I take all those points on board and undertake that either I or, preferably, my noble friend Lord Dubs will deal with them when we come to Report. In the meantime I commend Amendment No. 141.

On Question, amendment agreed to.

[Amendment Nos. 142 and 143 not moved.]

Lord Dubs moved Amendments Nos. 144 to 148:


Page 26, line 39, leave out ("individual") and insert ("person").
Page 27, line 1, leave out ("individual") and insert ("person").
Page 27, line 3, leave out ("individual's") and insert ("person's").
Page 27, line 13, leave out ("an individual") and insert ("a person").
Page 27, line 14, leave out ("individual") and insert ("person").

On Question, amendments agreed to.

Clause 55, as amended, agreed to.

Lord Archer of Sandwell moved Amendment No. 149:


After Clause 55, insert the following new clause--

Power to seek restraining injunction

(" . Where the Commission consider that a person is likely to engage in conduct that will lead to a persistent breach of the provisions of--
(a) the Human Rights Act 1988, or
(b) section 61 or 62 of this Act,
they may apply to the High Court for an injunction preventing that person from such conduct; and the High Court, if satisfied that the

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application is well founded, may grant the injunction sought in the terms applied for or in such more limited terms as it considers appropriate.").

The noble and learned Lord said: As we are all giving some biographical details, perhaps I should add myself to the list of those who are privileged to be members of the Northern Ireland Bar. I too would like to add to the very real tributes which have been paid to the moral and physical courage of the Northern Ireland judiciary, some of whom I am privileged to number among my friends.

This amendment approaches from a slightly different angle the question of the ability of the commission to engage in litigation. Amendment No. 149 seeks to deal with the situation where there has not merely been one isolated infringement of human rights but a pattern of violations. In fact, I was tempted to make the point by inserting the word "persistent" before the word "breach", but I resisted it because the necessity of establishing a persistent pattern has in the past sometimes given rise to difficulties.

If this power is not included, I suspect there will be occasions when a remedy which has sometimes been effective may not be available. I note Amendment No. 150 in the name of my noble friend Lord Morris and I am grateful for the reflections which have obviously been afforded to our representations. That amendment does not specifically refer to injunctions. It may be that I am being unduly cautious and that it would include injunctions, but I should be grateful for my noble friend's reflections on that.

Perhaps I may, with the Committee's leave, discuss with Amendment No. 149 Amendments Nos. 150 and 151. Amendment No. 151 takes a stage further our debates about the power of the commission to engage in litigation. I appreciate that Clause 56 accords with the policy of the Human Rights Act to confine the right of action to victims. I appreciate the reasoning behind that. But, as I understand it, the Human Rights Act does not address the power of a commission of the kind we are discussing here. It would be very strange if the commission did not have power to undertake litigation of its own accord and not necessarily have to wait for the victim.

I say that for two reasons. First, an individual victim may be reluctant to initiate proceedings. He may be threatened; or, even if he is not specifically threatened, he may be intimidated or he may be under pressure from a peer group. Secondly, an assault on human rights may be directed at a group or class of people. I appreciate the amendment which the Government have moved to extend the protection to persons as opposed to individuals, but that would not necessarily include groups or classes. For those reasons, I would ask that the restriction to a victim of an infringement should be extended at least a little. I am content at this late stage to await what my noble friend says about this. For the moment, I beg to move.

9.45 p.m.

Lord Lester of Herne Hill: Amendment No. 149 gives the human rights commission the same power as is already given to the EOC, the CRE and the FEC, all of which, in the equality field--certainly the CRE and

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the EOC--can bring proceedings to deal with persistent unlawful conduct by seeking an injunction. Therefore, it seems to be entirely appropriate that the human rights commission should have no less a power, where necessary, to deal with a persistent breach by seeking the order of the court. That is very rarely needed in practice but it is an important power to have within its armoury.

Amendment No. 150 may be better dealt with by Amendment No. 151, which stands in my name as well as that of the noble and learned Lord, Lord Archer of Sandwell.

Amendment No. 151 seeks to give the equality commission or the human rights commission the power to bring enforcement proceedings in the same way as a Law Officer may do so.

First, there seems to be an omission from the Human Rights Bill to which I have drawn attention in correspondence. I do not know whether it has been put right in another place; it is that, whereas the Law Officers have the power under the devolution legislation to bring enforcement proceedings in respect of breaches of human rights by devolved public authorities, there is no similar power under the Human Rights Bill itself. That seems to me to be an unfortunate gap. It may be caused simply by a failure to read across from the devolution legislation to the human rights legislation.

It seems to me that the great advantage of Amendment No. 151 is that without completely destroying the narrow victim test, to which I take strong objection but am stuck with because that has already been agreed to in the Human Rights Bill, this ensures that specialist equality and human rights commissions are able to bring public interest litigation to secure compliance with the law of the land just as may the Law Officers. That seems to me to be entirely right. It means that public interest litigation will be brought by the public authorities which are dealing with strategic law enforcement and they may do so whether together with or separate from Law Officers. For those reasons, I hope that in one form or another the Government will agree that there should be the capacity to deal with persistent breaches and the capacity for strategic public interest litigation to be brought in the name of one or other of the two new commissions.


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