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Lord Renton: I am very grateful for that explanation. Perhaps I may now briefly express my views upon this matter which are in agreement with those of the noble Lord. I believe that to disband the various bodies mentioned in Clause 59(2) and group all of their responsibilities together under one body to be known as the equality commission is to take a risk. Disability is a very large and delicate subject that needs attention in Northern Ireland. Both I and the noble Lord, Lord Rix, are aware that there is very strong MENCAP representation and other forms of disability in Northern Ireland.

The noble Lord is right to express the view that there should be a separate body to consider matters relating to disability and that is why in principle I support his amendment. I should like to know whether the Government have a satisfactory answer. To link disability with the various other matters to be considered by the equality commission, including fair employment, equal opportunities--that subject goes right across the board--and the Commission for Racial Equality for Northern Ireland, is to take the risk of subordinating disability to these other problems. I hope that they can be considered by a separate body as the noble Lord suggests.

Lord Dubs: I pay tribute to the distinguished record of dedication by the noble Lord, Lord Morris, to the cause of equality for people with disabilities and his contribution both as a legislator and a Minister. Many years ago before I was elected to the other place I recall speaking almost with awe of the contribution my noble friend had made to changing the law on behalf of disabled people. I also know well the long and distinguished record in this field of the noble Lord, Lord Rix. He has been very diligent in attempting to further the cause of people with disabilities. Like both noble Lords, the Government are anxious that disability issues should not be sidelined within the new equality commission. We believe most emphatically that that will not be the case.

The fact that the chair of the Northern Ireland Disability Council is on a new working group to plan the structures of the equality commission will help to ensure that disability issues receive proper attention in the work of the new commission. It is the view of the Government that the proposed equality commission for Northern Ireland is the appropriate body to exercise the functions that are currently exercised by the Northern Ireland Disability Council. Every noble Lord who has spoken has expressed concern that the particular organisation or body of the four to be merged is the one

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that will suffer in the process. I do not believe that that will be the case. I believe that the new body will be more effective than the component parts.

I turn to the specific issue of disability. If, following initial consultation on the White Paper promoting disabled people's rights, enhanced functions are given to a new disability rights commission in Britain we believe, as was said in an earlier debate, that the equality commission will be the appropriate body to undertake those enhanced functions in Northern Ireland. As is now understood, I believe that following devolution this will be a matter for legislation by the Assembly. In the circumstances, and with the assurances that I have been able to give, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Desai: Before my noble friend decides whether to withdraw the amendment I should like to make a short interjection. I intended to speak on the clause stand part. We have heard that, basically, whatever structure is set up, the disquiet of the various bodies in Northern Ireland should be addressed very thoroughly and sympathetically. When the working group meets it should take on board the disquiet of the various constituent bodies. People are genuinely worried. Whatever consultations for or against have taken place is not the point. The point is that there is disquiet about the separate identity of these bodies and funding. I hope that my noble friend can give an assurance that that will be addressed. I suggest--he may not agree with me--that one obvious answer is to include among the commissioners some of the people who already deal with this matter now.

Lord Molyneaux of Killead: Is it possible for the working party to be made aware of the fact that presumably, as it turns out, only England will have a disability council? Can one try to persuade the working group and the Northern Ireland Assembly not to legislate in advance of the establishment of the disability council now that one knows that it is for England and not Great Britain?

Lord Dubs: As to the last point, I am reluctant to advise the Assembly about anything. We must be very careful not to seek to tell the new Assembly what to do. But no doubt the Assembly will pick up the drift of what the noble Lord said.

In reply to the point raised by my noble friend Lord Desai, I shall ensure that the full account of the debate today and on earlier occasions on disability is made known to every member of the working group so that they are fully up to date as to the concerns expressed today and on other occasions.

Lord Morris of Manchester: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 60 [Statutory duty on public authorities]:

Lord Archer of Sandwell moved Amendment No. 154:

Page 29, line 11, at end insert--
("( ) The duties imposed by this section shall be without prejudice to any law, programme or activity which has as its object the amelioration of conditions for individuals or groups disadvantaged in terms of gender, race, disability, age, marital status, dependants, sexual orientation, religious belief or political opinion.").

The noble and learned Lord said: I beg to move Amendment No. 154. It may be for the convenience of the Committee to debate also Amendment No. 162. These amendments are about substantially the same point; that is, what is often called affirmative action. I say at once that they are not about reverse discrimination. The distinction is an important one. Old Northern Ireland hands will remember the debates on this subject in the early 1980s. The purpose of the amendments is to ensure that the clause shall not render unlawful any action that is taken to promote the very objectives of the clause itself; namely, that it shall not be self-defeating.

I offer an example. It may be that this matter has already been canvassed in the course of earlier debates today. I apologise that I was unable to be present for the first debate. If, in a room to which the public has access--perhaps a waiting room for people administering some service waiting their turn for interview--the space will not permit the provision of seats for everyone and the authority provides seats specifically for people with disabilities it may risk falling foul of subsection (1). Someone who is not disabled may say that the authority has provided a seat for a disabled person but not for him. These amendments would meet that objection. This is not about quotas. To refuse a job to a person who would otherwise have been offered it in order to redress a balance is not within the expression "amelioration of a condition"--at least that is my view. To bring an advertisement to apply for a job to the notice of a group of people who may not otherwise have been aware of it may well fall within that expression. I believe that the distinction is clear and it will not be improved by repetition on my part. No doubt the Committee anxiously awaits the reaction of my noble friend.

5 p.m.

Lord Cope of Berkeley: I am in sympathy with the purposes underlying the amendment described by the noble and learned Lord, Lord Archer, and of Amendment No. 162. I do not think that anyone could be out of sympathy, in particular with the example he gave of a seat in a waiting room. However, are all the categories listed in the two amendments within the responsibilities of the four bodies about which we speak? Some seem less likely to be so. I do not have the

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relevant legislation to hand. Perhaps the Minister can tell us whether, for example, age, marital status and sexual orientation are included in the legislation.

Lord Archer of Sandwell: I am grateful to the noble Lord. He will find those categories in Clause 60(2). I sought at least to follow the wording that was already there.

Lord Lester of Herne Hill: We, too, have full sympathy with the objective of the amendment; namely, to permit affirmative action. I am hesitant about what I am about to say because I believe that much of the inspiration for the amendment comes from Professor Christopher McCrudden, than whom there is no greater authority in the country on anti-discrimination legislation. I believe that it is based on the affirmative action clause in the Canadian charter of rights and freedoms.

Something has gone wrong with the grouping of amendments. Amendment No. 154 gives one approach; and Amendment No. 164, standing in the name of myself and my noble friends Lady Turner of Camden and Lord Rix, gives a slightly different approach. I wish to explain my reservations on Amendment No. 154 as it stands. There have to be some limits to affirmative action, otherwise the exception will swallow the principle of equal treatment without discrimination. The limit normally placed upon affirmative actions is a notion of proportionality: that affirmative action must be necessary, reasonably proportionate, or something of that kind. That limitation is in the Canadian charter of rights but not in Amendment No. 154. Amendment No. 154 simply refers to affirmative action as being the object of the exception rather than being reasonably necessary or proportionate. Amendment No. 164 is our attempt to permit affirmative action provided that the measures are,

    "designed and reasonably necessary to protect or advance individuals or groups of persons disadvantaged",
and so on. We fully share the objective of Amendment No. 154 but are simply concerned about the safeguards against abuse.

I pray in aid the South African constitution. When framing its 1996 constitution, there was great concern in South Africa that an open-ended affirmative action provision would be abused. That is why the words "designed to" were put into the South African constitution. They mean "intended to and having that effect". Therefore, with those reservations we support the aim of the amendment and hope that the Government will be able to do so. However, we suggest that there needs to be some limiting language to prevent abuse of this exception.

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