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Baroness Miller of Hendon: In this series of amendments, the noble Lord, Lord Goodhart, and other noble Lords seek to either remove or reduce the power of the Secretary of State to intervene in the work of the commission. In general terms, I sympathise with their objectives. It will be recalled that, at Second Reading, I complained of lack of independence of the commission and I also spoke about it this afternoon. As I said, I have the utmost sympathy with the amendment and agree with it in many respects.
My only problem with this particular group of amendments is that somewhere along the line they might knock out the involvement of the Government where it might be necessary for the Government to stay involved. For example, subsection (3) states:
"The Commission shall comply with a direction of the Secretary of State to advise about the effect of the enactment",
and so forth. From time to time, it might be important for the Government to have the benefit of the CEHR's expertise. After all, running the commission is quite an expensive undertaking. If all that information is gleaned and then the Government would like part of it to help them it would be a pity if that could not happen.
I hope that between now and Report noble Lords who feel strongly about this matter on one hand and the Government on the other hand will come to an arrangement whereby they reach a compromise. They should try to remove those cases where government interference is really objectionable. However, some cases, such as the one that I just mentioned, could be
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lived with—perhaps ought to be lived with. That would be a great step forward because these are important amendments and principles are involved.
Lord Lester of Herne Hill: These powers seem more interfering than in the old anti-discrimination legislation because the Government have quite sensibly separated out the concept of an investigation which is in the sex discrimination and race relations Acts into the concept of an inquiry and an investigation. In the old anti-discrimination legislation, the power to direct, which as my noble friend indicated, applies to "investigations". Because the Government have sensibly separated the two, more powers to direct are stated in the Bill. That is simply a matter of necessary presentation.
During the debates on the Children Bill, as I am sure the Minister will remind us, we had many discussions about the power to direct. It would be very helpful if the Minister would give a full reply explaining the financial and other consequences. I am sure that she will.
To add one further point, even if the Minister, for the reasons given among others by the noble Baroness, Lady Miller of Hendon, convinces us that these powers to direct are a necessary part of the structure in terms of funding and otherwise, I would attach even greater importance to the earlier debates on independence. If we could get satisfaction throughout the House on a general guarantee of independence of the commission from unnecessary government interference, this matter would have to be read within that context. I realise that that is something for another day.
Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Lester, for raising the issue of the context of this debate in terms of the independence which is an ongoing theme throughout this Bill. I am also very grateful to the noble Baroness, Lady Miller, for her question about advice; I agree with her. If the Government set up a commission, it is a repository of real expertise and information. We need to get that relationship right. That would be proper.
This issue fits into the broader context. When the Government want to explore an issue in depth, the commission is the centre of excellence and expertise to which they must turn. It would be absurd not to be able to draw on that expertise. That is what we seek in this part of the Bill. To get that independence and an authoritative perspective are matters that could be of enormous public concern. Noble Lords will be able to think of issues that will be covered by the commission in the context of things that have already happened.
What matters for this debate is to try to deal with concerns that these powers encroach unreasonably on the independence of the commission in the context of what the noble Lord, Lord Lester, said about our ongoing debate on independence. I have tried to make clear the importance that we attach to this body being independent and empowered. Obviously, the wide-ranging powers that we have provided in the Bill reflect that. I do not see any inconsistency between that and the powers that we have within the Bill. As the noble Lord, Lord Lester, indicated, there is nothing that is different
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that is not currently in place for one or more of the three commissions that will be included in the commission initially. Assessments are different because we do not have assessments in the previous legislation, but that is the only example.
I am not sure that I have yet heard an example of when the Secretary of State's direction-making power has inhibited the activities of the current commissions or compromised their independence. If noble Lords, either in your Lordships' House this evening or in reading our debates, can come up with examples I would be grateful to receive them, but I have tried to look at whether there are examples where that might be the case. I am not sure that the direction-making powers inhibit the capacity or authority of the commission to initiate inquiries or investigations of its own accord. It is inconceivable that the requirements of government would dominate the commission's work.
However, I am prepared to explore ways in which the direction-making power could remain without inhibiting the commission's ability to conduct the work that it considers necessary. One possible way—the noble Lord, Lord Lester, alluded to it—is to explore the role of the Secretary of State in providing additional resource when directing the commission to advise on the law to conduct an inquiry, investigation or assessment. What lies beneath many of the concerns that noble Lords might have is that somehow the commission's time is taken up doing the Government's bidding and it is not able to carry on with its work. Resources lie at the heart of that. We will look at that matter, as we did in the Children Bill, to see what more might be said about it.
There is nothing between us in terms of the Government wanting to see this as an independent body able to do the job that it is required to do. It is important that the Government are able to turn to the commission either to deal with points that are of great importance to the public and our society or to get the advice that is necessarily within the commission because of its expertise. On the basis of what I have already undertaken to do, I hope that the noble Lord will be able to withdraw his amendment.
Lord Goodhart: I am grateful to the Minister for her helpful reply. I am also grateful to the noble Baroness, Lady Miller of Hendon. The point that she raised is one that we might well reconsider because the obligation to give advice is undoubtedly less intrusive than the obligation to conduct an inquiry, investigation or assessment. Certainly, the threat to the activity of the commission is such that an excessive use of the power of direction might lead to an overload and a diversion of the finances available to the commission from higher priorities. Therefore, if the Secretary of State makes one of these directions, he should also be liable for providing any additional funding. That suggestion could be a helpful way out.
Meanwhile, this matter needs to be considered in the time available before we have to decide whether to bring any of these amendments back again. Having said that, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 13 [Monitoring progress]:
6 pm
Baroness Miller of Hendon moved Amendment No. 102:
"(a) the progress that has been made or is expected to be made in fulfilling its fundamental duty specified in section 3,
(b) the results at which to aim for the purpose of fulfilling that fundamental duty ("outcomes"), and"
The noble Baroness said: This is a probing amendment to tease out of the Government a more detailed explanation of the meaning and purpose of this clause.
In Clause 13(1)(a), the "fundamental duty" set out in Clause 3 is transmuted into a mere "aim". The commission is called upon to identify changes, factors and results "from time to time". That is in subsection (1). Eighteen lines later this vague timetable is firmed up to three yearly. It is certainly not for me to correct the Government's loose drafting, but why does Clause 13(1) not simply say "on the dates specified in subsection (4)"?
In identifying what the subsection calls "outcomes" and "indicators", the commission is required to consult whoever it thinks fit, as well as anyone who volunteers to join this consultation. Having done that, the commission is required to publish the results of this vague exercise, and the Secretary of State is to lay the report before Parliament.
At this point in the progress of the Bill, I am most certainly not going to reopen the debate about the fundamental duty of the commission, so no one need have any fear of that. Equally, I am not going to complain about the commission being obliged to report to the Secretary of State on the outcome of its activities or about the Secretary of State having to lay that report before Parliament.
Even the excellent Explanatory Notes, however, are extremely vague about the purposes of this clause and how that purpose is to be achieved. The Explanatory Notes state that,
"the CEHR will need to evaluate available evidence in order to identify desired outcomes for society and the indicators by reference to which progress can be measured".
Frankly, I have to confess that I am not absolutely sure what that means. What is clear, however, is that, as proposed, it is not to be an ordinary annual, or even triennial, report—one that says, for example, "Here are our accounts, and during the year we dealt with x number of matters of this sort and y of that sort, and we participated in this activity and inaugurated that initiative". In other words, this will not be a report on tangible activities, results and achievements.
This report will be on what the commission claims to have achieved in the course of its vague, philosophical objective of changing society. It will be based, according to subsection (2), on the opinions that the commission solicits from such persons that the commission decides to
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consult. Dare I venture to suggest that it may not be consulting anyone who, in the preceding three years, has been critical of the commission or any of its activities?
In fairness—the Minister will know that I always like to be fair and see both sides of the argument—I must point out that subsection (2)(c) requires the commission to issue a general invitation to make representations to it. But that passive action of receiving such opinions as someone may take the trouble to express is not the same as the positive action of consultation.
The result of this consultation will, I believe, be nothing more than an expensive, glossy brochure, containing a great deal of waffle and pious hopes, and very little in the form of tangible results that can be identified beyond argument.
I have to admit that my amendment does little, if anything, to improve the situation. All it does is make the requirements less prescriptive and more focused on the actual work of the commission, its future objectives and the way to judge them, than the woolly wording of subsections (1) and (2).
I look forward to hearing from the Minister a more detailed explanation of this somewhat nebulous clause so that we may be better able to judge it before the next stage of the Bill and so that Parliament may, in the future, judge how its provisions are to be complied with. I beg to move.
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