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The noble and learned Lord said: It may be for the convenience of the Committee to discuss with Amendment No. 155 Nos. 157, 308A, 309, 309A, 310 and 310A to 310H. I shall speak only to Amendment No. 155.
The purpose of Clause 60 is to impose on public authorities a duty to implement so far as they can the equality provisions. That was the intention of the agreement and this is the attempt by those who introduced the Bill to implement the agreement. No doubt most if not all the public authorities intend that that shall happen. But good intentions disperse into the mist unless there is in place a regime which directs people's minds to them in the course of daily administration, particularly of daily decision making.
A concern for human rights is not a separate step at the end of a decision-making process. It has to be a constituent part of every stage in the process. No one would suggest that in learning to drive we introduce safety as a distinct operation; for example, lessons one to nine on how to drive and lesson 10 on how to drive safely. It is an integral part of each stage of the process. Equally, a concern for human rights is part of the chemistry, not a device which we add to the machine at the end. That is the purpose of paragraph (a).
Paragraph (b) provides that, in addition, an authority shall pause sometimes and look backwards to examine what it has achieved and what it has failed to achieve. It simply provides for an annual stocktaking. It was urged on me to add a third paragraph; a duty at intervals of more than one year to review whether the aims with which the authority began the journey were sufficient. I refer to those which will be implemented under subsection (1). Aims, aspirations and visions may well expand as time goes on and perhaps they should be reviewed, too. But that paragraph is not in my amendment and therefore I cannot invite your Lordships to discuss it today. I await my noble friend's reply to the proposals I have set down, and I beg to move.
Lord Lester of Herne Hill: We support Amendment No. 155 because it makes public authorities consider
I shall speak now to Amendments Nos. 156 and 157 which have been grouped awkwardly with this amendment because they deal with a wholly separate subject. The purposes of Amendments Nos. 156 and 157 are to incorporate the definition of "public authority" in the Human Rights Bill into the Northern Ireland Bill instead of having the list system listing public authorities.
The Government have been astute in sticking to the definition of "victim" in the Human Rights Bill and to read it across into Clause 56(1) of the Northern Ireland Bill so as to have that narrow, crabbed definition of "victim" which applies right across the board, and there is nothing we can do about it. But for reasons I do not understand, the Government are unwilling to be similarly consistent when it comes to the public authority which is placed under a duty to promote equality of opportunity under Clause 60 and not to discriminate on religious grounds under Clause 61.
I have paid frequent tribute to the creative, poetic and imaginative drafting of the Human Rights Bill and that Bill defines "public authority" very sensibly in a broad, inclusive way. It states:
Instead, Clause 60 paragraph 3 provides that "public authority" means:
We find that quite bizarre. A person endowed with public functions and responsibilities plainly should have the twin duties in Clauses 60 and 61. Under the Human Rights Bill, the broadly defined public authorities will in any event have a duty not to discriminate under Article 14 of the European human rights convention read with other convention rights. Therefore, there will be the broad definition of "public authority" in the Human Rights Bill but there is to be a different definition of "public authority" for the purposes of Clauses 60 and 61.
We can see absolutely no good reason for having that list system. I believe that it comes from the Government's White Paper on freedom of information where they had the idea of using a prescribed list system. That is not integrated into the fabric of the Human Rights Bill, as is this legislation.
Therefore, we very much hope that we can achieve a workable general definition of "public authority" which will not catch anybody in the private sector. It is made clear in the Human Rights Bill that it does not catch people who are performing functions of a private nature. However, the Bill will deal with people who are within the public sector within that broad definition. Therefore, I have tabled Amendments Nos. 156 and 157 to make it workable and user-friendly.
Perhaps I may add to the plea made by the noble Baroness, Lady Lockwood. Surely we wish to have legislation which is intelligible to ordinary men and women so that the whole of the law within the Bill can be understood, with schedules which set out the equality legislation and a definition of "public authority" which is consistent whether one is dealing with discrimination under the Human Rights Bill or under the Northern Ireland Bill. We need to have an internal coherence and consistency; otherwise, people like me will earn a lot of money pointlessly advising on this gobbledegook style of legislation where Bills are not on good speaking terms one with the other. That is why we seek to include one common, simple intelligible definition of what is meant by a "public authority".
Lord Rix: I rise to support the noble Lord, Lord Lester of Herne Hill. As I understand it, the Human Rights Bill will be fully workable within the next 18 months; that is, according to the leader in The Times this morning. That being so, because the general definition of which body carries out functions of a public nature is stated clearly in what will become the Human Rights Act, surely it would be much simpler and more sensible for the Government to adopt that terminology now rather than having to adopt it in 18 months' time.
Baroness Lockwood: I support Amendments Nos. 155 to 157. Amendment No. 155 in the name of my noble and learned friend Lord Archer of Sandwell seems to me to be very practical. The equality agencies which exist at present advise organisations of any kind, including public authorities, to make appropriate arrangements for ensuring that their responsibilities under existing legislation are carried out.
It is often a safeguard to those organisations if they are subsequently accused of discriminating, if they can prove quite clearly that they have appropriate arrangements. If they have not discriminated, it is often easier to establish that fact.
It is appropriate for public authorities to know on the face of the Bill that they are expected not just to observe the general principle but in practice to make certain that they have in place appropriate procedures and
The two amendments spoken to by the noble Lord, Lord Lester of Herne Hill, seem to me very logical. Clarity and consistency in our legislation helps those of us who are trying to ensure that such legislation is adhered to.
Lord Skelmersdale: I agree that we should have clarity but not necessarily consistency. After all, as has been pointed out not once but twice in this short debate, the human rights legislation will not come on to the statute book for a little while and will not be operative for some time afterwards. Therefore, the phrase which has been praised today that a public body is one which carries out acts of a public nature has not yet been tested in the courts. Until it has, I suspect that we should be rather previous to include it in this legislation.
The definition of "public authority" seems to me to be quite clear, with the possible exception of paragraph (e) which refers to:
Lord Meston: I hesitate to interrupt a debate in which I have not participated. Since the passage of the Human Rights Bill I have spent a lot of time studying the question of what is or is not a public authority within the context of that Bill. As my noble friend, Lord Lester, said, it is clear that the Bill provides a partial but nevertheless comprehensive definition and it would be a great misfortune if there were inconsistency in the approach that the courts had to take to the definition of what is or is not a public authority.
In the Human Rights Bill it is clear that there are certain bodies which are undoubtedly public authorities. Certain other bodies are more hybrid and they will be treated as public authorities in respect of their public functions, but not otherwise. Inevitably, this will generate a body of case law to deal with the grey areas.
At one stage in the passage of the human rights legislation through your Lordships' House I recall the noble Lord, Lord Williams of Mostyn, saying, in terms, that there would be certain areas in which the courts would have to develop the law to decide whether or not certain bodies or certain functions were to be regarded as public. I suggest that it cannot be right that there should be uncertainty elsewhere as to what is or is not a public authority, particularly if a narrower definition were to apply in the context of Northern Ireland.
The matter cannot simply be left to the courts to develop. With respect to the suggestion that the matter can be shelved because the Human Rights Bill will not come into full operation possibly until the end of the
Page 29, line 11, at end insert--
("( ) Each public authority shall--
(a) make appropriate arrangements for ensuring that its functions and responsibilities are carried out with due regard to the duties imposed by this section; and
(b) submit an annual report to the Equality Commission for Northern Ireland setting out the measures and policies adopted to comply with the duties imposed by this section.").
"In this section, 'public authority' includes ... any person certain of whose functions are functions of a public nature".
We believe that that broad definition should apply to the statutory duty under Clause 60 of the Northern Ireland Bill and the duty not to discriminate. In other words, any person,
"certain of whose functions are functions of a public nature"
in Northern Ireland should have a duty to promote equality of opportunity and not to discriminate on religious grounds.
"The First Minister and the deputy First Minister ... a Northern Ireland Minister ... a Northern Ireland department ... any body listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation) ... any other person designated for the purposes of this section by order made by the Secretary of State".
Therefore, the matter is to be dealt with by subordinate legislation by order rather than the broad, workable, inclusive test for the purpose of the Human Rights Bill.
"any other person designated for the purposes of this section by order made by the Secretary of State".
I have no doubt that sooner or later we shall be given an inkling of the Secretary of State's thinking in this regard. Nonetheless, I would have thought that this comprehensive list was a happier position than a phrase which, as I say, has not yet achieved respectability, as I understand it, in British law.
5.30 p.m.
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