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Lord Morris of Manchester: I rise to speak to the amendment in the name of my noble friend Lord Ashley. In the consultation process on the establishment of a disability rights commission the Association of Disabled Professionals made the following comment about regulatory powers:


Clearly, because they are so precisely worded, the reason for placing these important--indeed essential--features of non-discrimination notices in regulation-making powers cannot be to provide this flexibility. Why are these important provisions left to the whim of the Secretary of State? Why are they not covered by the constructively decisive "shall" of subsection (2) rather than the worryingly woolly "may" of subsection (3)? It seems to me to be of the first importance to have these provisions in non-discrimination notices. Without them the value of a non-discrimination notice would be less and the work of the commission made more arduous and costly.

If, then, these provisions are required, as the careful drafters of this Bill appear to concede they are in so precisely wording them and calling for them to be included, why should they have to await the Secretary of State's decision on other possible requirements that could be included in non-discrimination notices? It is crucially important to establish time limits by which someone served with a non-discrimination notice is required to act. Without any such time limits one can foresee procrastinators having the time of their lives emasculating the powers of the commission and

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devaluing the purpose of a non-discrimination notice. Such procrastination could easily add unnecessarily to the costs of the commission.

To some extent I can understand why the setting of times within which the requirements of a non-discrimination notice have to be met has been left to regulations. Arguments about legislative flexibility apply here. Not all the requirements have been set down and what may be reasonable time limits for different requirements have not yet been determined. However, I cannot possibly understand why this crucially important issue of time limits has been left so vaguely within the powers of the Secretary of State. He or she may make regulations which may specify the time within which some requirement must be met. It is merely a "may" and another "may". Could anything be more unsatisfactorily vague?

6 p.m.

Earl Russell: The noble Lord, Lord Morris of Manchester, has touched a chord with us all with his invocation of the phrase "a worryingly woolly may". But that, like all our views here, is a parliamentary view. If we consider the issue from the other side of the net, the word "may" is all too delightfully precise. The purpose of parliamentary legislation is to tie the hands of the Executive. The purpose of the Executive, regardless of party, is to untie its hands. So as soon as the word "may" appears in a statute, the Executive has untied its hands to that extent. That is why I say that from that point of view it is all too delightfully precise.

I am sure the Minister will reply that all these amendments are unnecessary. Executives love saying that amendments are unnecessary. The Minister will point to the word "may" and say that the whole thing can be done by regulation. Yes, exactly. But the disadvantage of doing something by regulation is that it cannot be amended. In extreme circumstances it can be voted down, but it cannot be amended, and voting down is an extremely blunt instrument. So the wealth of experience in this Chamber--it is very considerable--cannot be brought to bear on the wording of a regulation. The Executive may do whatever it likes.

The Executive reply--I have heard it so many times that I could script it in my sleep--will be that it gives flexibility, that it makes the provision easier to change if it finds that it has made a mistake. On that argument it is perfectly correct. But the Executive's flexibility is our inflexibility. Because the Executive can change when it finds it has made a mistake, we can do nothing when we find there is a mistake.

That seems a slightly one-sided arrangement. I understand why it commends itself to Ministers, but is that a good reason why it should commend itself to the rest of us?

Baroness Blackstone: I welcome the amendments as they demonstrate agreement between us that the arguments for extending the scope of non-discrimination notices issued by the disability rights commission are strong. I think on that there can be no disagreement

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between us. Our differences arise on whether the detail of how that might be best achieved should be on the face of the Bill or in regulations.

The Bill makes provision for the disability rights commission to issue a non-discrimination notice when it becomes satisfied in the course of a formal investigation that a person is committing, or has committed, an act of unlawful discrimination. The notice allows the commission to state that it has found the person concerned to have committed, or to be committing, an act of unlawful discrimination and requires the person to stop discriminating and acting the same way in future. I am sure noble Lords will agree that, where the commission has found a person to be discriminating, it should be able to issue a notice to that person which would be enforceable requiring him to stop discriminating. That underlies what all noble Lords who spoke in the debate said.

The purpose of the amendments is to specify on the face of the Bill the ability of the disability rights commission, in addition, to prescribe in a non-discrimination notice particular changes in practice that it considers are required to avoid unlawful acts. I can confirm what my noble friend Lord Ashley said. This proposal emanates from the reviews by the Equal Opportunities Commission and the Commission for Racial Equality of their establishing legislation. In that context, perhaps I should say that I may have misled my noble friend Lord Morris of Manchester earlier. The CRE and the EOC have asked in their review to be able to initiate proceedings. But that raises the complicated legal issues which I mentioned earlier.

This proposal was considered by the disability rights task force. The task force was keen to ensure that the non-discrimination stage of the formal investigation process should be made as effective as possible. There was concern that prescription in all the areas that the amendments would cover may not be the best way forward. In particular there were concerns that the proposal may allow the disability rights commission to impose a particular way of addressing an issue which has led to discrimination when there might be other ways of addressing them than those prescribed. The Disability Discrimination Act is relatively new and more complex than other anti-discrimination legislation. There is no well-established body of accepted practice upon which the disability rights commission could draw in framing the requirements on employers and service providers. There was concern, too, that a very high level of understanding as to the way businesses operate is required in order to determine exactly what might be practical in a particular situation. The task force recommended that the issue should be considered in the light of the outcome of the reviews of the existing equality commissions.

The Bill makes provision for the Secretary of State to be able to make regulations extending the scope of a non-discrimination notice and to make related provisions. I noted what the noble Earl said on that, but I wish to reassure him that, were the Government not to accept the amendment, regulations would be made. The regulation-making power would allow a degree of flexibility so as to ensure that a consistent approach is

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taken for each equality commission where this is appropriate and allow the detail of the administrative arrangements to be specified and modified in the light of experience. However, in the light of the strong views expressed today I should be happy to consider the issue again at Report stage.

Baroness Blatch: In the light of the promise that the Minister will consider the issue between now and Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 to 12 not moved.]

Clause 4 agreed to.

Clause 5 [Agreements in lieu of enforcement action]:

Baroness Blatch moved Amendment No. 13:


Page 3, line 34, at beginning insert ("to suspend or").

The noble Baroness said: The purpose of the amendment is to tease out whether an agreement of the kind referred to is intended always to replace an investigation. As soon as an agreement has been entered into does a case fall? Alternatively, in some circumstances the commission might enter into an agreement, having suspended the investigation but with the proviso that it might return to the investigation. It appears that once an agreement has been entered into the only action is recourse to the court if the terms of the agreement are not met. If the commission had the power to return to an investigation, that might provide another tool to its armoury.

It is possible that some people might object to the measure in that it might lead to a further delay and a court action, but it would provide another course of action for the commission. My proposal to insert the words "to suspend or" will reinforce the commission's armoury in cases where notice has been given and an unsatisfactory attempt at suspension has been applied. It will enable a case to be kept out of court for as long as possible; in other words, living up to my constant theme of using recourse to the court as a last resort. I beg to move.


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