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Lord Goodhart: My Lords, I rise to express my support for the amendment and, indeed, for the noble Lord, Lord Hylton. In Committee we welcomed the introduction of what is now subsection (8) of Clause 65. That was an important addition given the fact that investigations can usefully and effectively complement court adjudications. However, additional powers will be necessary to enable the commission to investigate effectively any alleged human rights abuses. I believe that those powers certainly include the power to obtain documents and hear witnesses. Indeed, in that respect I disagree with what the noble Lord, Lord Cope, said.

I believe that such powers are necessary. Indeed, according to the current Standing Advisory Commission on Human Rights (which is really the precursor body to the proposed human rights commission) the human rights commission will be deficient if it does not possess those powers. The existing equality commissions have those powers and they are indeed part of the minimum standards for national human rights institutions laid down by the United Nations in the Paris principles of 1993. Therefore, I believe that the amendment introduced by the Government in Committee did not go far enough. Although I do not necessarily agree with the whole of the amendment moved by the noble Lord, Lord Hylton, I strongly support it in spirit. I hope that the Government will be able to take some degree of action upon it.

Lord Archer of Sandwell: My Lords, I rise to support Amendment No. 95. The case for it has been fully deployed by noble Lords who have already spoken, and indeed was deployed at the Committee stage. It will not be of benefit if I repeat it now. I add only that as between the noble Lords, Lord Cope and Lord Goodhart, in relation to the extent of the powers, I find myself more persuaded by the noble Lord, Lord Goodhart.

Lord Williams of Mostyn: My Lords, as the noble Lord, Lord Cope, rightly observed, Amendment No. 95 is designed to give coercive powers to the Human Rights Commission. I do not think that we are entirely in disagreement on the approach, although our solutions differ. I take the point of the noble Lord, Lord Hylton, that his Amendment No. 133 would trigger the power only after cross-community approval.

I shall not repeat all the arguments that we addressed in Committee, but I explained--I think accurately--that we could not reach sufficient consensus among the parties to give the commission this power, which was not mentioned in the agreement. I said that we had not closed our minds on this issue. That is why we

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introduced amendments which are now on the face of the Bill which I believe are extremely important and ought to go a good deal of the way to satisfy the noble Lords, Lord Hylton and Lord Goodhart, and my noble and learned friend Lord Archer of Sandwell. I refer in particular to Clause 65(1) and (2). We have introduced amendments which will require the commission to review its powers and functions within two years.

In the delicate situation which faces us I think it is a prudent approach to let the commission develop its work, carry out its inquiries and investigations, and if it comes to the conclusion that its powers and functions are not up to the work it is required to do, it would be able--a certain amount of experience having been acquired and a certain amount of time having passed--to make a full report on what it needed to carry out its functions. I believe that the best way forward is to see how well the commission operates under the powers that the Bill will give it and then reconsider the questions which are raised by these amendments when the powers are reviewed within two years--that is not a long period of time--when the commission will form a view on its powers and functions.

Lord Hylton: My Lords, I am grateful for the strong support that I have received on Amendment No. 95. Between now and Third Reading will the Minister consider whether he could introduce a government amendment that would go a little way, or some way, to strengthening Clause 65(8) on the powers of investigation? I hope that he can say something helpful on that. However, given the time of day I have no wish to divide the House. Unless the noble Lord wishes to speak again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 [Restrictions on application of rights]:

Lord Williams of Mostyn moved Amendment No. 96:


Page 33, line 9, leave out ("or 22(1)(a)") and insert (", 22(1)(a) or 65(5)(b)").

On Question, amendment agreed to.

Clause 71 [Statutory duty on public authorities]:

Lord Dubs moved Amendment No. 97:


Page 34, line 38, leave out from ("authority") to ("have") in line 39 and insert ("shall in carrying out its functions relating to Northern Ireland").

The noble Lord said: My Lords, Amendment No. 97 makes clear that the statutory obligation is not confined to Northern Ireland public authorities, but can also include UK departments, such as the Northern Ireland Office and UK-wide public authorities which carry out functions relating to Northern Ireland. The terminology in the amendment is also closer to that in Clause 72.

Amendment No. 99 defines "public authority" for the purposes of this clause. In response to comments received in the other place, an attempt has been made to align this definition more closely with that in Clause 72. However, complete harmonisation has been impossible. Essentially, there are four groups of public authorities to which this clause will apply. The first is UK departments and UK-wide public bodies, which are covered by the

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reference to Schedule 2 to the Parliamentary Commissioner Act 1967. These also have to be designated for purposes of this clause by order of the Secretary of State. There will be many UK-wide public authorities which will have no particular relationship with Northern Ireland, or will carry out only limited functions there. Due consideration will need to be given to which other United Kingdom departments should be designated.

The second group of public authorities are those listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996. These are Northern Ireland public bodies, including district councils.

The third group are those bodies listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 and these are essentially the Northern Ireland government departments. Finally, the Secretary of State may designate other public authorities for purposes of this clause.

The references to the First Minister, the Deputy First Minister and Northern Ireland Ministers would be removed by this amendment. The implementation of the statutory obligation is through equality schemes and these clearly need to be prepared by institutions, rather than by individuals. Northern Ireland Ministers will, of course, be politically responsible for their departments which will all prepare equality schemes. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 98:


Page 35, line 7, at end insert--
("( ) Nothing in this section shall preclude a public authority from taking any measure designed and reasonably necessary to protect or advance individuals or groups disadvantaged by reason of sex, disability, age, marital status, colour or ethnic origin, sexual orientation, religious beliefs or political opinion.").

The noble and learned Lord said: My Lords, I sense that a long exposition of this amendment will not be welcome to your Lordships at this stage in our proceedings. In Committee we debated an amendment which I ventured to move to ensure that the Bill should not prove to be self-defeating. It would be self-defeating if it had the effect of prohibiting affirmative action to bring about the very equality which it is designed to protect. Sometimes it is necessary to treat some people differently from others in order to redress a balance. It would be proper to provide seats for disabled people even if they are not provided for other people.

My noble friend Lord Dubs replied that the amendment was not necessary. He said that the public authority is required only to have due regard to the need to promote equality of opportunity, and provided it did have due regard to that need it could embark on affirmative action. History does not encourage me to rest content with my noble friend's argument. Those who drafted the Canadian charter of rights and freedoms did not feel content to leave a vacuum on that point. Some of us remember the battles of the 1980s when there were those who argued to the contrary of what my noble friend now seeks to assure us. It is not clear why the matter should not be placed beyond doubt by express words in the Bill. That is the purpose of this amendment.

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However, the noble Lord, Lord Lester, who is unavoidably absent, pointed out a defect in the amendment which I previously sought to move. He pointed out that there must be some limit on affirmative action, otherwise it will swallow the requirement of promoting equal treatment. He pointed out that the Canadian charter adopted the criterion of proportionality. I have included that limitation in this amendment. I hope now that my noble friend will feel able to think again. I beg to move.

Lord Goodhart: My Lords, I shall speak briefly. The noble and learned Lord, Lord Archer of Sandwell, has already mentioned the fact that at the Committee stage of this Bill my noble friend Lord Lester of Herne Hill strongly supported an amendment to permit affirmative action where reasonably necessary. I simply add that we on these Benches are firmly in favour of the amendment which has just been moved.


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