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Dr. Evan Harris: I thank the Minister and her colleagues for listening to the representations that I and others have made. I would also like to say, on behalf of the Joint Committee on Human Rights, which also made a recommendation on these issues, how pleasing it is that these concerns have been noted. This makes all the scrutiny work of the Committee appear worth while. In the spirit of what the Minister said, I ask her to ensure that the discrimination law review consider these issues carefully, because, despite the high level of scrutiny that they have received, we might not have covered everything that might need amending through the regulatory powers in the Bill.
Meg Munn: I am happy to give the hon. Gentleman that commitment and also to say that the discrimination law review will provide further opportunity for consultation on a wide range of issues. I am sure that the Joint Committee on Human Rights, as well as other scrutiny processes and Select Committees, will want to consider how the measures will affect the areas that they cover.
Government amendment No. 14 has been tabled in response to issues raised in Committee. The amendment amends the definition of discrimination in regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 to make it clear that religious discrimination in the area of employment and vocational training is unlawful, even when committed against a person of the same religion as the discriminator. That is the intention, and we believe the effect, of this regulation as it stands, but the amendment resolves any doubt on the matter.
We made a similar amendment, in the other place, to what is now clause 45. Having considered the case made in Committee that this now leaves an apparent inconsistency between the Bill, as amended by the Government in the other place, and the Employment Equality (Religion or Belief) Regulations 2003, we have concluded that a similar clarification to those regulations would be helpful.
Dr. Harris: I would like to say how grateful I am that the Minister has responded to the concerns that I raised in Committee about that inconsistency, although I share her view that the meat of the matter was dealt with by my noble Friend Lord Lester in the significant amendment that was made in the other place. However, I am grateful to the Minister once again.
Amendment No. 12 makes the reading of that particular provision much easier. Given that we
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debated the matter at some length in Committee, it is curious how the changing of one word can turn a concept that is rather difficult to understand into precisely the concept that the Minister was trying to put forward to me in the letter sent to me.
I take the view that it would be wrong and short-sighted for the new commission not to have a duty at least to consider all applications for legal assistance that come before it. The existing commissions have that duty, and its omission in regard to the new body amounts to a breach of the no regression principle established by the Government. There is no requirement to provide legal representation in all cases; it is a discretionary power that is exercised in a limited number of strategically important cases. This is a fundamental principle of access to justice and its omission from the Bill effectively removes the right of a victim of discrimination to apply for assistance and to be assured that their application will be considered by the new body.
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In amendment No. 22, I want to insert casework into the operation of the new body because casework has been an important part of the role of the existing bodies, and yet at least one of them, at the end of last year, abolished its casework unit, citing the fact that it did not expect casework to continue under the new body.
People can receive three different types of support from the existing commissions: legal support, which means full legal support and financial assistance; casework, which is largely a hand-holding exercise providing support and advice to people in vulnerable situations to develop their case; and information in the form of paper briefings. A commitment is needed that casework will continue under the new body. It is feared that a few will be offered legal support in high-profile cases while the rest simply receive a briefing pack after having phoned an outsourced call centre helpline.
The existing staff of all the bodies and, I believe, the existing commissioners value casework highly. It is the majority of their work and leads to many small winsnot the high-profile cases with legal support that receive the most publicitythat have a real effect on people's lives. People will be better represented if the casework continues, and I seek the Minister's assurance that it will be an element of the continuing work under the new body.
On amendment No. 21, we have said consistently throughout consideration of this Bill that it is not our intention that the new commission will provide legal assistance for every meritorious case. It will simply not have the resources to do so, any more than the current commissions can support every case, as they do not have the necessary resources that that would entail. We have said consistently that it is our intention that the new commission will use its enforcement powers in an effective and strategic way. That applies equally to its power to assist individuals in bringing proceedings before a court or tribunal. We cannot see the case for placing an express obligation on the commission to consider every application. In practice, it will need to consider all applications if it is to identify which, if any, it wishes to support. As a public body, the commission has an implicit obligation not to act unreasonably, and could be challenged if it ignored applications that it received.
Amendment No. 22 seeks to add casework to the list of legal assistance that the commission can provide alongside what is already listedlegal advice, legal representation, facilities for the settlement of a dispute and any other form of assistance. Our view is that that amendment is also unnecessary, as the commission for equality and human rights will be able to provide casework advice under the powers contained in clauses 13 and 29. Clause 13 will allow the commission to provide general advice and guidance on matters that are not the subject of legal proceedings. Where legal proceedings are envisaged, casework advice is included within the reference to legal advice and representation in clause 29. Specifying casework separately would cast
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doubt on whether the references to advice and guidance and legal advice and representation cover casework and imply that it is something different, which it is not.
Amendment No. 44 would permit the commission to meet the costs of the other party in the event that an individual that it was supporting lost the case before a court or tribunal. At this stage, I should make it clear that the commission may meet any costs awarded by a court or tribunal against an individual that it was supporting. This is the case with the current commissions and will be so for the new commission. However, the amendment seeks to go further than securing that position. It would create a power for the new commission to meet the costs of the other party even where no costs had been awarded by the court or tribunal.
Hon. Members will doubtless be aware of the concern expressed in the other place about small firms and charities being treated unfairly or oppressively when the commission uses its enforcement powers. There was extensive debate in the other place on that matter and I am grateful for the opportunity to set out our thinking on how the new commission will engage.
First, we do not have to fear unreasonable or oppressive action by the commission. The commission will work primarily through promoting good practice, helping bodies comply with the law and fostering constructive links with a wide range of bodies, including small businesses and charities. The commission will need to be sensitive to the concerns of its stakeholders. If it fails to do so, it will lose authority and public support. It will, of course, need to consult on its strategic plan, which will include its legal and regulatory strategy. I hope that that alone should provide reassurance against the commission taking an arbitrary or unreasonable approach. However, I recognise that it is possible that a small organisation could find itself defending an action brought with the commission's support, but there are checks and balances that ensure that a body in this situation is not disadvantaged. Most legal proceedings on discrimination are brought in employment tribunals. Employment tribunals are specifically designed to have straightforward procedures that make formal representation unnecessary.
I am not persuaded that we should give the commission the power to meet the costs of the other side in such circumstances. The commission will use its power to support individual litigants in proceedings that it believes will have a strategic effect. It would be inappropriate for the commission to then meet the costs of the other party. I do recognise the concerns, but there are sufficient safeguards in the Bill to prevent this situation from occurring.
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