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Baroness Ashton of Upholland: I shall be very brief. As the noble Lord, Lord Lester, knows, our concern with the amendment has always been to ensure that human rights cases are brought before our courts only by specific and identifiable people whose rights have been infringed. That was one reason why the victim test was put in the Human Rights Act. It is also why the European Court of Human Rights does not allow pure public interest challenges. The purpose was to enable people who could bring a claim in Strasbourg to bring that claim before the domestic courts.
We have always been wary of undermining the commission's role in promoting awareness and good practice in relation to human rights. However, the noble Lord has made a forceful case for adopting a limited exception allowing the commission to bring cases under the Human Rights Act in the public interest. My noble and learned friend the Lord Chancellor and I are reviewing and considering the noble Lord's arguments to give them the best possible consideration, and we will come back to him before Report.
There are a couple of unintended consequences in the way in which the amendment is structured, but I shall not go into them as the noble Lord does not
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intend to press the amendment this evening. On the basis of what I have said, I hope that he will be able to withdraw it.
Lord Lester of Herne Hill: I am very grateful. The Minister mentioned the victim test under the European human rights convention. It is for an international procedure, and there is no reason why we should allow a European international treaty to stultify good English and Scottish domestic procedures before administrative courts. We want to blend human rights into the fabric of our legal system; I am sure that that is not contentious. I am most grateful for the generous way in which the Minister replied, and am now in a state of excited suspense.
"14A (1) Where a person is given a notice under paragraph 10 he shall disregard it, and notify the Commission that he is disregarding it, in so far as he thinks it would require him
(a) to disclose sensitive information within the meaning of paragraph 4 of Schedule 3 to the Intelligence Services Act 1994 (Intelligence and Security Committee),
(b) to disclose information which might lead to the identification of an employee or agent of an intelligence service (other than one whose identity is already known to the Commission),
(c) to disclose information which might provide details of processes used in recruiting, selecting or training employees or agents of an intelligence service,
(d) to disclose information which might provide details of, or cannot practicably be separated from, information falling within any of paragraphs (a) to (c), or
(e) to make a disclosure of information relating to an intelligence service which would prejudice the interests of national security.
(2) In sub-paragraph (1) "intelligence service" means
(a) the Security Service,
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(b) the Secret Intelligence Service, and
(c) the Government Communications Headquarters.
(3) Where in response to a notice under paragraph 10 a person gives a notice to the Commission under sub-paragraph (1) above
(a) paragraphs 13 and 14 shall not apply in relation to that part of the notice under paragraph 10 to which the notice under sub-paragraph (1) above relates,
(b) the Commission may apply to the tribunal established by section 65 of the Regulation of Investigatory Powers Act 2000 for an order requiring the person to take such steps as may be specified in the order to comply with the notice, and
(c) the following provisions of that Act shall apply in relation to proceedings under this paragraph as they apply in relation to proceedings under that Act (with any necessary modifications)
(i) section 67(7), (8) and (10) to (12) (determination),
(ii) section 68 (procedure), and
(iii) section 69 (rules).
(4) Where the Commission receives information or documents from an intelligence service in response to a notice under paragraph 10, the Commission shall store and use the information or documents in accordance with any arrangements specified by the Secretary of State.
(5) The recipient of a notice under paragraph 10 may apply to the High Court (in England and Wales) or the Court of Session (in Scotland) to have the notice cancelled on the grounds that the requirement imposed by the notice is undesirable for reasons of national security, other than for the reason that it would require a disclosure of a kind to which sub-paragraph (1) above applies."
"(5A) Paragraphs 12 and 14A of Schedule 2 shall have effect (with any necessary modifications) in relation to a requirement imposed by a notice under this section as they have effect in relation to a requirement imposed by a notice under paragraph 10 of that Schedule."
The noble Baroness said: Amendments Nos. 154 and 155 are probing amendments to illustrate that the work of the EOC in particular is not only concerned with the Sex Discrimination Act and the Equal Pay Act but also draws upon key pieces of employment legislation, particularly in respect of maternity and paternity leave, part-time work and employment rights. The statutes listed in these amendments are not the only relevant legislation, but they illustrate the position.
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In the view of the Equal Opportunities Commission, if the commission's remit is interpreted strictly according to the enactments listed in Clause 35, then key elements of its work would not be covered. This is because an increasing amount of discrimination legislation that it currently covers, or the legislation that has implications for discrimination, is covered in employment law. For example, of those cited in this amendment, the Employment Rights Act 1996 requires employers to issue a written statement of terms and conditions of employment. The way that the Maternity and Paternity Leave etc. Regulations 1999 operateand any proposals to reform maternity leave provisions as set out in the Government's recent work and families consultationis of material concern to the EOC. And the regulations of 2000 on part-time work for male and female workers apply to all aspects of pay and conditions of employment, contractual and non-contractual, and will require that the part-time worker should be paid and receive other benefits on a pro rata basis.
The key point is what the Equality Bill allows the commission to do in relation to employment legislation. For example, under Clause 15 the commission will be allowed to issue codes of practice in connection with a matter addressed by the equality enactments. That will cover the kinds of legislation cited here, and that is welcome. But the commission will not be able to exercise its enforcement powers in relation to anything other than the equality enactments. That means, for example, that it will not be able to investigate why many employers do not carry out health and safety assessments of pregnant women and take enforcement action in connection with that.
Similarly, the denial of access to training is a fundamental issue for many male and female part-time workers, but it would not be directly covered by the commission's enforcement remit. It would therefore be difficult for the commission to take enforcement action in relation to it.
Access to flexible working for fathers and rights for those with unpaid caring responsibilities are also issues with which the EOC is concerned, but they often fall outside the scope of the Sex Discrimination Act. The Government are proposing to extend the right to request to those with caring responsibilities, but as that is not a sex discrimination issue it would not fall within the scope of the commission; nor would it be covered by any other organisation.
I believe that it is crucial that all these equality enactments continue to be covered by the commission. I should be grateful if the Minister could clarify how they will be covered in the new legislation. I beg to move.
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