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The noble Baroness said: This is a probing amendment, which I am pleased to move. I recognise that I may have misread the Bill, but it seems to me that subsection (5) restricts assistance to cases under equality law and, as such, places an undue restriction on the new commission.
The commission should be free to bring strategic legal cases under relevant employment and non-transposed EU law; for example, under the part-time workers directive. Such a prohibition does not exist in current discriminatory legislation. The current commissioners have always exercised their discretion responsibly, and I am sure that future commissioners would do so as well.
Lord Lester of Herne Hill: For that reason, I shall speak to Amendments Nos. 133 to 136, which have been grouped with Amendment No. 132 in the name of the noble Baroness. They all deal with questions about the integration of human rights.
The promotion and protection of human rights is an essential element of the mandate of the new commission. It is important that those duties are not sidelined. Human rights will provide an important tool in achieving the right balance between the different grounds for discrimination. As the Committee will appreciate, there are, for example, built-in conflicts between sexual orientation discrimination and religious discrimination that may arise in certain contexts. There are questions of privacy that must be taken into account in the context of equality.
The Government White Paper Fairness for All, published in May 2004, specifically asked whether the commission should be enabled to continue supporting cases with both discrimination and human rights dimensions after the discrimination arguments fall. The government response to the consultation, published in November 2004, noted:
"A majority of respondents felt the legitimacy of the CEHR would be undermined if it were not able to continue to support cases on the grounds of human rights, even if the discrimination element (under which the case would originally have been taken by the CEHR) falls away".
Despite the extensive consultation and the clear and overwhelming response from the consultees, we are disappointed to note that the Bill provides, in Clause 30(6), that such cases can continue only if the Secretary of State so orders. We therefore propose amendments to enable the commission to continue to
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support such cases when the equality element of the case falls away, without requiring that the Secretary of State makes such an order.
I should add that the Joint Committee on Human Rights believes that the order-making power in Clause 30(5)(a) is too restrictive. The order-making power would only apply when the claimant had originally relied in part on Section 7(1) of the Human Rights Act 1998. The Joint Committee believes that this,
"would not accommodate the situation where, for example, the court, in fulfilment of its own obligations as a public authority under section 6 of the Human Rights Act, brings a Convention right into consideration in the case".
I hope that the substance of the amendments will be accepted, so that we will not have the artificial dividing of equality and human rights into watertight compartments in a way that will not serve the interests of justice or the intended beneficiaries of the human rights legislation.
Baroness Ashton of Upholland: I am grateful to my noble friend for raising the issues and to the noble Lord, Lord Lester, for his views. The noble Lord has rightly reflected the views of some stakeholdersI know that the noble Lord hates that word; none the less I will use it in this contextwho have argued about this.
I want to set out the position as the Government see it. As noble Lords will know from previous discussions, we recognise that the commission cannot support every case that is brought to its door. It needs to select cases strategically. I indicated previously that it was about 400 cases out of 20,000 that the combined commissions sought to support.
It is in relation to the equality enactments that the commission can best use its power to add real value. It would not be right to allow the commission to support only the discrimination aspects of cases that, for example, relied on discrimination and unfair dismissal arguments or discrimination and human rights arguments, which are called "combined cases". However, we also do not consider it right that the commission should continue to support combined cases once the discrimination arguments fall. Under the legislation, therefore, the commission supports combined cases for as long as they retain their equality elements. If the arguments relating to those elements no longer form part of the case, as noble Lords will know, Clause 30(5)(b) provides that the commission cannot continue to support the case.
We are concerned that allowing the support to continue in the absence of the equality core could increase the number of cases seeking support from the commission, something that we would not necessarily want to see. We want to ensure that the commission does not have to spend resources on weeding out cases that it does not want to support. We have long resolved that it should operate only on combined cases with equality issues and that the support would fall away in the circumstances that I have indicated.
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We have also long resolved that the commission should not support cases solely under the Human Rights Act 1998. Public funding is already available for such cases, and to duplicate that would cause unnecessary confusion. Also, human rights cases can cover a wide range of areas. As the noble Lord, Lord Lester, has indicated, the combined cases power was a response to where the stakeholders felt we might usefully see the commission support cases with its work.
We have no way of estimating with any accuracy how many combined cases there will be; how many the commission may choose to support; how many of those would later lose their relation to the equality enactments and trigger Clause 30(5); and how many of those would retain arguments. That is why we have inserted subsection (6), which is the order-making power. The plan is straightforward. Once the commission is up and running, we will be able to talk to it and take a view on whether an order under subsection (6) should be made. An order would be made that could either allow for all combined cases that become pure human rights cases or for a class of such cases to be taken forward.
The Bill enables the Secretary of State to enact the power once the commission is up and running and once we have some clear indication of how best to use the power, to enable us to take a pragmatic approach to the issues that have been raised. It allows us to make a decision on the evidence put before us, rather than on the basis of not yet knowing which cases will continue.
It is not clear why Parliament cannot take the decision, rather than the Secretary of State at some future time. That is an issue of principle. I shall give a practical example, however and ask for help. Suppose that I am arguing a combined case and that the other side say, "Take the equality point first and the human rights point second". They will know that I cannot get assistance for the human rights point from the commission. So I argue the equality point first, and I fail. At this point the funding disappears for the second point.
I have then got to consider what is to be done on appeal. I think that I should win on both points. Under this rigid scheme, whose flexibility we can only hope will occur in the future, if the Secretary of State makes an order at some future date, how will I, as the litigant, be able to secure justice by way of appeal? I am not talking about principle, but the practical implications seem not to be workable.
How would the Minister solve that kind of problem under her scheme in a way that allowed both issues to be litigated and supported at first instance and then litigated on appeal in a way that allowed them to be combined again and continued before the combination occurred again? I fear that, as with many well intentioned schemes, a lot of court time and legal costs will be wasted in sorting out this kind of problem.
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