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Lord Skelmersdale: I do not know whether the noble Lord, Lord Meston, was referring to what I have just said when he talked about leaving it in abeyance, but that was certainly not the point I was trying to make. I was trying to say that until these grey areas, which the noble Lord admitted would be bound to exist, had been comprehensively dealt with by case law, we could be in a difficulty as far as this Northern Ireland legislation is concerned. I do not believe that that is desirable.
Lord Lester of Herne Hill: Before the noble Lord sits down, would he accept that bodies like Railtrack and British Gas would plainly be public authorities on the definition in the Human Rights Bill but that they would be covered by Clauses 60 and 61 only if they were designated by the Minister? That is the kind of mischief we seek to tackle in these amendments: that there will be public authorities in the ordinary meaning of the term "public authorities" that would be outside Clauses 60 and 61, yet inside the Human Rights Bill.
Lord Cope of Berkeley: The more I listen to the discussion about the grey areas, the more I am inclined to favour what has been called the "closed list" system, at least for this purpose. For example, Railtrack sells indirectly to the public a particular service while the train operating companies sell the service directly to the public, but Railtrack does not seem to me to be in a different position from a shop that sells other forms of goods, or other people who provide services to the public, including lawyers, providing the public can pay. The noble Lord, Lord Lester, rightly and admirably, was trying to cut down the amount paid by the public to lawyers earlier, which obviously is to be commended.
The phrase "functions of a public nature" seems to open itself up to a good deal more argument which I do not think is desirable in the Northern Ireland context at this stage. In future, when case law has had time to be settled, it may be right to put the definition contained in the Human Rights Act 1998, as stated in this amendment, into this legislation. For the time being I favour the "closed list" system.
On the lead amendment about public authorities arrangements, the noble and learned Lord, Lord Archer, touched on an interesting suggestion for making those bodies which are defined as public authorities answerable to the equality commission. We have to test
I am inclined towards the Government's view of the "scheme" proposal, as opposed to the "annual report" proposal. They do not necessarily rule out one another. They could proceed in tandem. To have both of them at once may be overdoing it. My preference at this point, subject to further debate, is for the "scheme" system rather than the "annual report" system, if I can express it that way.
Lord Simon of Glaisdale: Perhaps I may speak to Amendments Nos. 156 and 157 proposed by the noble Lord, Lord Lester of Herne Hill. There may be several advantages in them. The first is an important one. The amendments considerably shorten the provision and that is no mean consideration when we are gradually adding to the volume of the Bill as we go through it.
The second point is that made by the noble Lord, Lord Lester, and the noble Lord, Lord Meston. It can only cause trouble if we have two different definitions in relation to what is substantially the same subject matter. The definition in the Human Rights Bill is likely to be the one that passes into law. Many of us wanted to extend it, but my noble and learned friend the Lord Chancellor and the noble Lord, Lord Williams of Mostyn, would not have it and so we must be content with it as it stands. It is not a dangerously wide definition from the point of view of those who fear that human rights are going too far. As I say, it does not go as far as many of us would wish it to.
If we have two different criteria, as the two noble Lords on the Liberal Democrat Benches said, it can lead only to argument in court comparing one code with the other. That is a second advantage that speaks strongly in favour of the amendment. I hope that the Minister will at any rate agree to consider the matter further.
Lord Dubs: These amendments all deal with the obligations on public authorities in carrying out their functions to have due regard to the need to promote equality of opportunity. I am happy to inform the Committee that today's government amendments include one which addresses the point raised by several commentators in recent months; that is, the need for a direct requirement on public authorities to prepare schemes.
The March 1998 White Paper--Partnership for Equality--first proposed such an obligation which should supersede the existing guidelines. The White Paper proposal was radical. It proposed the implementation of the new statutory obligation for equality schemes which would detail procedural steps to be taken by each public authority in carrying out its functions. Those ideas of a statutory obligation and equality schemes were taken up in the Good Friday agreement.
Those amendments essentially meet the purposes of Amendment No. 310. We do not agree with his proposal in Amendment No. 309 that the commission should be able to revise a scheme. That should be for the public authority, if necessary, after a request from the commission. I therefore invite my noble friend not to move those amendments.
Government Amendment No. 310A extends the detail on the content of equality schemes in paragraph 2 (2) of Schedule 10 to include arrangements for ensuring and assessing public access to information provided by the authority, information as well as services in the agreement. That may require a public authority to set out its arrangements for ensuring that people with disabilities or members of ethnic minority groups have access to information which it provides to the public. Amendment No. 310C extends the potential range of consultation on a draft equality scheme.
Amendments Nos. 310D to 310H ensure that the Assembly is kept informed when the commission finds difficulty with the public authority's equality scheme and refers the matter to the Secretary of State. Similarly, the Secretary of State must keep the Assembly informed when making a decision on a problematic scheme or on the report of an investigation referred to him by the commission. Given the Assembly's responsibilities for Northern Ireland departments and a wide range of local public authorities, it is right that it should be kept informed in that way. As I mentioned, we expect to have further amendments to Schedule 10 at Report stage.
Amendment No. 155 from my noble and learned friend Lord Archer of Sandwell would impose a duty on every public authority to make appropriate arrangements to fulfil its statutory duty under Clause 60. It also calls for an annual report to be submitted to the equality commission by each public authority.
The Good Friday agreement referred to the implementation of the statutory obligation through equality schemes. This is the format described in Schedule 10. Government Amendment No. 309A will impose a direct obligation on a public authority to prepare a scheme showing how it proposes to fulfil its duties under Clause 60. Schedule 10 describes how the equality commission will have oversight of each public authority's equality scheme.
We are also considering an amendment for Report stage which would require that each public authority review its scheme every five years and inform the commission of its conclusions. The arrangements under Schedule 10, together with the amendments to which I referred, should meet many of the objectives of Amendment No. 155, though within the context of equality schemes to which we are committed by the Good Friday agreement.
Amendments Nos. 156 and 157 from the noble Lord, Lord Lester, would delete the current definition of public authority and replace it with a definition used in the Human Rights Bill--also an amendment supported by the noble and learned Lord, Lord Simon of Glaisdale. During the summer we looked at the different definitions of public authority in Clauses 60 and 61 and we hope to bring them more closely into line. Amendments to be brought forward at Report stage will broaden the definition in Clause 60 to include UK-wide departments and public authorities, which may require special arrangements for dealing with complaints. However, full harmonisation between Clauses 60 and 61 seems impossible.
The idea of an all-purpose definition of public authority based on the human rights legislation may seem attractive, but the European Convention on Human Rights defines public authority very widely, including authorities only some of whose functions are public. The definition of "public authority" which appears in the Human Rights Bill would take in a much broader range of bodies exercising statutory and public functions.
Clauses 60 and 61 impose duties over and above those under the Human Rights Bill and the fair employment legislation. Those additional duties will entail further costs which it is only appropriate to impose on carefully selected bodies. Adopting the Human Rights Bill approach would cast the net too wide and run counter to the need to be selective.
The obligations under Clauses 60 and 61 are difficult ones for public bodies and we must consider carefully to which public bodies they might refer; hence the problem in relation to definition. Accordingly, we do not believe that the human rights legislation definition is appropriate for either Clause 60 or Clause 61. I therefore invite my noble and learned friend to withdraw the amendment.
Lord Simon of Glaisdale: Before the noble Lord sits down perhaps I can ask for elucidation on one point. I seem to recollect that "public authority" under the Human Rights Bill--we were assured--covered broadcasting authorities, certainly the British Broadcasting Corporation. That is a powerful organ and obviously one that ought to comply with the human rights obligations. I am not conversant with the broadcasting arrangements for Northern Ireland but
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