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Lord Swinfen: My Lords, the noble Lord, Lord Hughes, referred to his late noble friend Lord Ross of Marnock. The noble Lord will recall that he had a reputation for calling a Division whenever he felt the need for a cigarette. Therefore, it is possible that he may have tabled amendments to give him that opportunity. However, we also know that he was greatly loved on all sides of the House.

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The very first line of Clause 2 states that,

    "The Commission shall have the following duties".
It is an instruction to the commission. It should encourage good practice, which is its most important duty. Therefore, I am very strongly in favour of the amendment of my noble friend Lady Blatch to change "may" to "shall". I also believe that her Amendment No. 4 is extremely worthy and should also be included in the Bill.

Lord Rix: My Lords, as the Government are probably minded to reject both these amendments, I would like to remind the House and the Minister of an intervention that I made at Committee stage when I said,

    "I should have thought that it was perfectly easy to remove subsection (2) and to make it part of Clause 2(1) as a new paragraph (d). Clause 2 would then read:

    'The Commission shall have the following duties--

    (d) to encourage good practice regarding the treatment of disabled persons in any field of activity'".--[Official Report, 4/2/99; col. 1630.]
Semantics go completely out of the window. I know that the noble Baroness, Lady Blatch, was fully prepared to accept that as an alternative. It was never responded to directly by the noble Lord, Lord Hunt of Kings Heath. If the Government are minded to reject these amendments and there is no Division, I ask them to consider my suggestion seriously before we come to Third Reading.

Earl Russell: My Lords, before I feel in need of a cigarette may I express my enjoyment of the speech of the noble Lord, Lord Hughes of Woodside, and his description of the exchanges between Lord Ross of Marnock and the noble Lord, Lord Campbell of Croy. It simply serves to confirm the Namierite picture that whatever the political colours of the government of the day, the Court and Treasury Party is always in office and the Country Party is always in opposition. But to say that the Court and Treasury Party is always powerful is not to say that it is always right.

I cannot match the noble Lord, Lord Campbell of Croy, as regards the length of time that I have been involved with this, but looking at these proposals I am where I came in on the Education Act 1988. I have seen more Bills setting up commissions since then than I would like to imagine. In that period I have also seen a steady change in the style of official draftsmanship in order to make commissions, Secretaries of State and other government agencies less subject to control.

I understand that. It is the problem of poachers and gamekeepers. The poachers always want to weaken the powers of the gamekeepers and so they naturally should. But this is a contest in which there ought always to be two sides. This steady growth in the permissive drafting of legislation so that it is harder to challenge the use of power quite severely diminishes accountability.

Clause 2(2) states,

    "The Commission may encourage good practice regarding the treatment of disabled persons".

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That means that if the commission never once in all its existence does anything which improves the treatment of disabled persons, it is not accountable; it has not failed in any duty.

I am sure that that is not the Government's intention, but it means that it is their intention that the commission should not be accountable should it fail in that duty. I perfectly understand that from the official point of view. The Civil Service is a profession in which one may receive blame but not praise. I entirely understand that that is a difficult situation to cope with and I have sympathy for it. But this degree of unaccountability is unwise. It encourages unaccountable, and therefore potentially arbitrary, power. It should therefore be viewed with misgiving.

Amendment No. 4 is very close to one of the very first amendments to which I had the privilege to speak in Committee. It said that the Universities Funding Council, as it then was, could only offer advice to the Secretary of State when he asked for it. Incidentally, I heard what the noble Baroness, Lady Blatch, said about the arguments with her officials. I was most grateful for that. Of course, I was unable to know that at the time, but I am very glad indeed to hear it now.

When the Secretary of State wants advice it is almost always going to be when he least needs it. That has been a topos of political theory for centuries. The king who most needs advice is the king who does not know that he needs it.

We have managed to move on just a little from that situation. It seems to me that the proposal in Amendment No. 4 is a very practical one. Let us suppose, for example, that the commission believes that the Higher Education Funding Council for England is in need of advice on something which has relevance to disabled persons, as may well be the case at any time. As things stand now, that would go right up to the Minister's desk. The Minister would have to send it down again and there would be an immense circulation of paper in a great variety of directions.

I do not believe that Ministers of the Crown are particularly short of work. Would it not be a good idea if the disability rights commission and the Higher Education Funding Council for England were able to have a quiet word together-- I shall not say at leisure, because even they are busy people--with slightly less haste than is the case at the centre of government? They could then jointly report to the Secretary of State that they had reached an agreement and ask whether he would consider joining in their agreement. That would save government a great deal of work. Any proposal that allows Ministers to have more sleep at night tends towards good government.

Lord Hunt of Kings Heath: My Lords, we have had an interesting debate. I am relatively new to the arguments concerning "shall" and "may". I recognise that the two words cause a great deal of interest in your Lordships' House. I could not agree more with the noble Lord, Lord Renton, who pointed out that "shall" and "may" can mean different things at different times and in different places.

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Before I turn to what may be described as the technical arguments, I emphasise that there can be no question but that the commission will want to encourage good practice. I do not think that it is discretionary in the sense that noble Lords have implied. Nor is there an issue of abandoning the encouragement of good practice to focus on a legalistic approach.

Noble Lords may find it helpful if I explain that Clause 2(1) sets out the commission's overarching duties. Two of these are to work towards the elimination of discrimination against disabled people and to promote the equalisation of opportunities for disabled people. In pursuing those duties we fully expect, and believe it will be necessary for, the commission to encourage good practice. Indeed, this is how much of what we all want the commission to do might be achieved. Encouraging good practice must be an integral part of the application of these duties. For example, the commission could pass on, perhaps through a representative body, to all large retail companies of a certain type elements of good practice developed and tested in a particular retail company and found to offer disabled people the same quality of service as others. That clearly seems to fall within the ambit of equalising opportunities. But there are perhaps very few examples of what we commonly call good practice which, to a pedantic eye, might not appear to fall within the scope of the main duties under Clause 2(1); one might take the view that certain aspects of disability etiquette training do not. Clause 2(2) therefore seeks to make clear beyond any doubt that the commission is free to encourage good practice.

However, there are dangers in making that a duty rather than a power. It would not be wise, for example, to place a duty on the commission to encourage good practice in a situation where no accepted good practice exists at all. To do so could open it up to challenge. Challenge might also come where the commission offers novel advice to overcome particular difficulties or where a judgment has to be made about which practices--

Baroness Blatch: My Lords, will the noble Lord elaborate on the point he makes that if the commission wished to encourage good practice where none existed, it would somehow be in breach of its duties under the Act, as it will then be? That is very strange indeed. If there were a place of employment where no good practice existed, surely the commission would have a duty to encourage good practice there.

Lord Hunt of Kings Heath: My Lords, the commission is a new body. Inevitably, when it starts work it may call on a limited body of good practice. It will be treading new ground. It will not always be able to draw on good practice in giving advice in specific situations. By making the encouragement of good practice a duty rather than a power, one may invite challenge and potential judicial review. What is good practice now may not be good practice in a few years' time.

Earl Russell: My Lords, the Minister admits that it is an argument about accountability. On his response to

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the question of the noble Baroness, Lady Blatch, does he agree that where good practice does not exist the commission should be responsible for inventing it?

4.45 p.m.

Lord Hunt of Kings Heath: My Lords, where it is difficult to identify good practice, the commission will clearly have a role, when asked for advice in a new area, to draw on whatever experience there is to help.

The issue of accountability was raised by both the noble Earl and the noble Baroness. Clearly, the commission will be accountable for the good practice that it encourages. It will need to make clear to the Department for Education and Employment, year on year, how it uses its resources in terms of promotional work and other functions. It will also be accountable in its annual report to the public, to this House and to another place, year on year. In that report it will need to make clear how it has used its resources and how it has sought to promote good practice.

I believe that promoting good practice will be an important part of the duties of the commission. However, placing a separate duty on the commission would not, I believe, achieve anything positive for the reasons I have given. I hope that the noble Baroness will agree to withdraw her amendment.

Amendment No. 4, also tabled by the noble Baroness, Lady Blatch, seeks to make specific provision on the face of the Bill for the commission to make proposals or provide advice to a government agency. I indicated in Committee that the commission would have the power to do that under wider provisions in Clause 2. I refer specifically to subsection (3)(b) dealing with the commission's ability to provide advice and information. The amendment is, therefore, unnecessary.

However, I am happy to place on record that the commission may provide advice to government agencies--for example, the Health and Safety Executive--on the practical application of the law when doing so meets its more general duties of working towards the elimination of discrimination and equalising opportunities. Alternatively, government agencies would be free to seek advice and information from the commission which the commission would be able to grant.

However, I see little merit in making special provision for government agencies on the face of the Bill above others who may benefit or indeed may need the commission's advice. Should we also make a similar provision for local authorities and the host of other organisations who make a judgment about what the law requires and apply it?

The noble Baroness, Lady Blatch, suggested in Committee that what she wanted to achieve was a duty rather than a power. I do not believe that it is right that we impose a duty on the commission in this respect. In placing a duty on the commission, it would be deciding the areas of interest and priority for it. While government agencies may not be perfect, I believe there are many other organisations which may be in as much,

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if not more, need of the commission's advice. I am confident that the commission will use its powers wisely when making decisions about whom to advise.

There is a further point. There are a number of organisations in existence which already offer advice to government agencies about disability matters; for example, the Advisory Committee for Disabled People in Employment and Training (ACDET) which provides a great deal of advice to the Employment Service. Placing a duty on the commission in the way that the noble Baroness describes may result in duplication of effort. Of course, the commission should work with such organisations, but placing a duty on the commission in this respect will not help flexible, co-operative arrangements.

I believe that the Bill already addresses the concerns of the noble Baroness, Lady Blatch. I therefore hope that she will agree to withdraw her amendment.

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