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Earl Russell: My Lords, since the Minister has given the answer that the noble Lord, Lord Ashley of Stoke, foresaw, can he give the further assurance for which I asked; namely, that the Government accept the decision of 20th October 1994: that this House holds itself free to vote on subordinate legislation?

Lord Hunt of Kings Heath: My Lords, I understand that it is the convention not to do so.

My noble friend Lord Ashley was right to say in Committee that this matter was complex and difficult. There is a good deal about the workings of the Human Rights Act that we do not yet know. Giving the commission wider powers in this area would necessitate it becoming involved in a complex range of issues across the whole spectrum of convention rights against the background of the forging of a new relationship between the courts, the legislature and the Executive made necessary by the constitutional changes under the Human Rights Act. The Government are not deterred by these complexities. On the contrary, we are committed to considering extending the commission's powers in this area and the regulation-making powers that we have included in the Bill will enable us to do so at the appropriate time; that is, after detailed consideration of the meaning and implications of such a course, consultation where appropriate and in the light of any developments that may result from the work of the Joint Parliamentary Committee.

I began my remarks on these amendments by welcoming the opportunity to clarify the Government's intentions as to the role of the commission in reviewing

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the Human Rights Act and assisting disabled people to enforce their rights under that Act. I hope that I have made clear our determination that the commission should have the necessary powers to tackle discrimination against disabled people effectively. I hope that my noble friend Lord Ashley will trust in the good faith of the Government and withdraw his amendment.

I turn to Amendment No. 16 which appears to seek clarification of the extent of Clause 6 and to explore the relationship between the DDA, the Human Rights Act and the Scotland Act. It may be helpful if I begin by clarifying the extent of the application of Clause 6. Its purpose is to enable the commission to support individuals in litigation in which disability discrimination is an issue. Clause 6(1)(a) gives the commission power on the face of the Bill to provide assistance to individuals in relation to proceedings brought under Sections 8 and 25 of the Disability Discrimination Act. Subsection (1)(b) gives the Secretary of State power to extend by regulations the range of proceedings in relation to which the DRC can provide assistance under this section. We have made clear that we wish to consider including proceedings brought in relation to Section 7 of the Human Rights Act. As I have already explained in the context of other amendments relating to the Human Rights Act, it is not possible to be more precise at this stage about how the provisions of Clause 6 may be used in relation to that Act.

As the noble Lord, Lord Swinfen, pointed out, discrimination issues are reserved to the Westminster Parliament. There are two exceptions which allow the Scottish Parliament to encourage equal opportunities generally, other than by prohibition or regulation, and to impose duties on public bodies with functions relating to devolved matters to ensure that their functions are carried out with due regard to the requirements of equal opportunities law. Those exceptions are not such as to require reference to the Scotland Act in this Bill and in that respect the amendment again appears to be unnecessary.

However, it may be helpful if I clarify one or two issues that lie behind the noble Lord's amendment. The purpose of Clause 6 is to enable the commission to support individuals involved in litigation in which disability discrimination is an issue. It is difficult to set out the limits of such a wide area but it is conceivable that it can be used to support a disabled person litigating in the Scottish courts to challenge the effect of legislation of the Scottish Parliament if that legislation has the effect of limiting the application of his rights under the Disability Discrimination Act. If the noble Lord has in mind the possibility of using the Section 7 form of action under the Human Rights Act to challenge Scottish legislation on the grounds that it is incompatible with the convention, we cannot at present give him any assurance about the precise scope of the Clause 6 power in that situation because we have not yet seen how Section 7 of the 1998 Act is to be implemented. I hope that this explanation clarifies the working and extent of

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Clause 6 in sufficient detail for the noble Lord's purposes and that he will feel able to withdraw the amendment.

Lord Rix: My Lords, before the noble Lord sits down perhaps I may make the following observation. I may be naive but I fail to see why the Minister cannot accept the advice of someone who has been in Parliament for 50 years. I refer to the noble Lord, Lord Renton; and the noble Baroness, Lady Blatch, who served in a senior capacity in the previous government. Their proposal to insert "and other relevant Acts" or similar wording is simple. It sweeps up (not under the carpet) all the problems that I, the noble Lord, Lord Ashley of Stoke, and others have listed. That wording gives absolute coverage. I do not understand why the Minister cannot at least state that the Government will review this matter before Third Reading.

Lord Hunt of Kings Heath: My Lords, if it would help, I agree to reflect on the matter and write to the noble Lord.

Lord Swinfen: My Lords, I was interested in what the Minister said. I must reflect upon it with my advisers. It seems that the commission will need to employ two sets of lawyers, English and Scottish. I am concerned that there will not be enough money. The Minister may be able to tell me whether there will be sufficient funds. I have a feeling that the commission will be extremely short of them.

Lord Hunt of Kings Heath: My Lords, I suspect that we shall debate resources later today. It is firmly our belief that those made available to the commission will be sufficient for its purpose.

Lord Ashley of Stoke: My Lords, I am grateful for the support the amendment has received from both sides of the House. In particular, I appreciate the constructive suggestions of the noble Lord, Lord Renton--I nearly called him my noble friend--and the noble Baroness, Lady Blatch. I hope that they will be taken on board at a proper time by the Minister.

I hope we are not seeing from the Minister a pattern which is set for the day of rejecting all these carefully considered, reasonable amendments. They are put forward in good faith to try to help disabled people. They are not obstructive and they do not demand the earth. I believe that the Government could accept them, but we are hearing negative, negative, negative replies, as we did in Committee.

My noble friend says that the Government will watch carefully. That is fine; we expect that. It should not need saying. However, we also want the commission to be able to watch carefully. My noble friend says that the scope of human rights is very wide: so it is. For that reason, any human rights commission will be unable to make disability a priority. One cannot expect disability to be a priority in such circumstances; it will be a sideline and a tiny proportion of its work. Therefore, the Minister's argument cuts no ice.

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We are to have a skilled commission of men and women, more than half of whom have a disability and tremendous experience. Why cannot they look at the issue instead of a broad human rights commission? That is the case for the amendment. My noble friend mentions duplication. Duplication comes only through incompetence. We are assuming that the disability rights commission will be made up of intelligent people. They will be selected by the Government, so we assume they will be intelligent. Why cannot they avoid duplication and instead co-operate with the other bodies?

There was a tiny shaft of light in my noble friend's reply. He has a difficult job and the issue is complex. I hope that we shall receive more than an answer which is bureaucratic and official. What is needed is a political human understanding of our proposals. Nevertheless, in view of the time pressure and other difficulties, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Baroness Blatch moved Amendment No. 3:

Page 1, line 20, leave out ("may") and insert ("shall").

The noble Baroness said: My Lords, in Committee I said that I was unhappy with the reply given by the noble Lord, Lord Hunt, and would wish to return on Report to make my case that "may" should be substituted by "shall" and to couple that proposal with Amendment No. 4. I cannot over-emphasise that the important work of the commission will be to operate alongside employers, helping them in practical ways to comply with their obligation under the Disability Discrimination Act.

Most noble Lords will agree that resort to litigation should be avoided wherever possible. It should be the last resort. The success of the Commission will be assessed on the degree of work it undertakes without needing to resort to the courts. For that reason, I support what I believe will be its key activity; namely, to give appropriate emphasis by obliging it on the face of the Bill, as a measure of duty, to encourage good practice. Therefore, I believe that "may" should be substituted by "shall".

In Committee, the noble Lord, Lord Hunt, said:

    "The intention of the drafting of Clause 2(2) is to allow the commission flexibility in how it promotes good practice where it thinks it appropriate. I hope that all noble Lords will agree with me that the commission should be free to decide--and indeed would be best placed to know--what that is at all times. I fear that placing a duty on the commission to do so may well have the effect of constraining it, rather than giving it flexibility".--[Official Report, 4/2/99; col. 1631.]
I take issue with almost everything in that paragraph. Of course the commission will act where it believes that to be appropriate. It will be its duty to do so. When it thinks appropriate it will move in to advise and help companies which need it. Of course the commission is best placed to know when to act and I back that with my amendment. However, I cannot see the argument that placing a duty to encourage on the commission

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might constrain it. Why should that be the case? If the commission believes it appropriate to,

    "encourage good practice regarding the treatment of disabled persons in any field of activity",
it has a duty to do so. My amendment does not constrain the commission. It simply provides that:

    "The Commission shall encourage good practice regarding the treatment of disabled persons in any field of activity".

I believe that the Minister would do well to reject the official advice, which is always that "may" should never be substituted by "shall". I can prove testament to arguing like a tiger with officials who delivered that absolutely standard, almost deadpan response to any such suggestion. There are occasions when such a substitution is going over the top and being too pedantic. However, as regards the work of the commission, the activity of encouraging,

    "good practice regarding the treatment of disabled persons in any field of activity",
which is aimed at keeping cases out of the courts, is so important and such a key feature of its work that I believe that pressing the Minister to accept "shall" rather than "may" is appropriate.

As regards Amendment No. 4, in Committee I said:

    "What I was trying to say is that it should be required and have a duty pressed upon it to advise government agencies as well as government. Why, for example, have a subsection (3)(a) and a subsection (3)(b) if we are not prepared to consider including government agencies? They provide a very large part of public service these days".--[Official Report, 4/2/99; col. 1632.]
In response, the noble Lord argued that the proposed measure was subsumed within the Bill. In summing up on that amendment, the noble Lord, Lord Addington, repeated a request I made to the Minister: please point us to the particular reference in the Bill which subsumes the point made in Amendment No. 4. I have looked carefully since we last met. I have found no reference. There has been such a proliferation of government agencies--they continue to proliferate--that it is most important that the duty laid on the commission to advise government when appropriate should apply to agencies. I beg to move.

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