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Lord Dubs: It is a fairly complicated point. Perhaps I can take up the latter suggestion. I shall look into the matter and write to the noble and learned Lord.
Lord Archer of Sandwell: I am grateful to all noble Lords who contributed to this debate. Perhaps I may say at the outset that I wholly agree with the noble Lord, Lord Lester, that the grouping in relation to this amendment is somewhat eccentric. I follow what my noble friend said; that is, that all the amendments deal with the duties imposed on public authorities. I should have thought that that was a somewhat slender logical thread for grouping the amendments. However, as I was not here to contribute an input to the groupings this morning, it hardly lies in my mouth to complain.
In relation to Amendment No. 157, I agree with the noble Lord, Lord Lester, and those noble and noble and learned Lords who supported him. Nothing further from me at this stage will improve the occasion.
As to Amendment No. 155, it does not seem to me--the noble Lord, Lord Cope, agreed--in any way inconsistent with the proposal for the schemes to say that, in addition, public authorities shall build into each stage of their decision-making process a structure of thinking about human rights at that point. It is not inconsistent; in fact it would add something for the reasons I attempted to give earlier. If in addition there was an annual report, it would mean that annually the authority would look at what it had achieved in the previous 12 months and would not have to wait for a period of five years before it took stock. I wholly agree with the point made by my noble friend Lady Lockwood that it might be a protection for local authorities to say, "Well, we have done our best. At every stage we have built into the decision-making process an instruction to look at the human rights situation."
However, this is not the occasion to divide the Committee. It may be a springboard for discussing the matter further and I am sure that my noble friend will be open minded about it. It may be that I did not express myself as effectively as I should have done when I opened the debate. Perhaps when he reads what I said my noble friend may think about it again. For the moment, I am content to ask your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lester of Herne Hill moved Amendment No. 156:
The noble Lord said: I thank all noble Lords who participated in the debate on Amendments Nos. 156 and 157--those who disagreed with the amendment as much as those who agreed. It is heartening to have the wisdom of the noble and learned Lord, Lord Simon of Glaisdale, on this subject. I sometimes ask myself why we bother and why we take such care in scrutinising legislation. Who are we trying to address? It is not the wider public
Before I explain what I intend to do on the amendment, perhaps I may try one last effort to explain why I think the Government might reconsider. I shall give a hypothetical example. I give the example of a body, say, British Gas or Railtrack, which would plainly be a public authority for the purposes of the Human Rights Bill if it were to discriminate in breach of Article XIV of the convention in a field covered by the convention. If a public authority of that kind were to discriminate directly under Clause 61--we are talking about direct religious discrimination under Clause 61--it is clear that, as a result of the recent decision of the Judicial Committee of the Privy Council, that body would be breaching the common law principle of equal treatment. It is also clear that it would be a public authority covered by the common law administrative law requirement to give equal treatment.
So far--I hope your Lordships follow the way I am trying to explain the position--the hypothetical gas or railway body would be bound by the European Convention on Human Rights under the Human Rights Bill; it would be bound by the common law; and it would be a public authority for the purpose of judicial review and supervisory jurisdiction. It would also be bound by European Community law in an area where equality directives apply. But under Clause 61 it would only be bound if it had been designated by the Minister specifically in subordinate legislation.
That, I suppose, is done for the purpose of clarity. But it would not be clear at all, for the reasons given by the noble and learned Lord, Lord Simon of Glaisdale, because one would have different definitions in respect of the same subject matter--the same subject matter because the Human Rights Bill covers discrimination in some areas and because Clause 61 does as well. We would be in breach of our international treaty obligations were we to create a gap of that kind. It is perfectly clear from the International Covenant on Civil and Political Rights, the discrimination against women convention and the discrimination based on race convention that bodies like Railtrack or British Gas must be bodies with a duty not to discriminate on religious grounds or any other grounds.
I appeal to the Government to think again and to make sure that there is no gap between the definition of a public authority in Clause 61 and the definition of a public authority in the Human Rights Bill. Otherwise, I think we will be in breach of our international legal obligations and we will create a great deal of legal uncertainty for bodies like British Gas, which the noble Lord, Lord Skelmersdale, rightly indicated will be concerned to know their legal position. They will not be much the wiser as a result of the impact of common law and the Human Rights Bill and the mere absence of a designated order under Clause 61.
For those reasons I hope very much that further consideration will be given to the matter. We take some comfort from the Minister's words indicating that there will be an attempt to widen the definition in Clause 61. I was dismayed when he said that there will be a different definition of public authorities in Clause 60 from Clause 61. That would produce another form of uncertainty and inconsistency. After all, sex discrimination, race relations and fair employment legislation does not draw a distinction, as far as concerns respondents, between the positive duty to promote equal opportunity and the negative duty not to discriminate. We urge that both the definitions should be moved in the same direction and made consistent with the Human Rights Bill.
There has been a good debate. I am grateful to everyone who has taken part. For the moment, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Ampthill): The noble Lord has already spoken at some length to Amendment No. 156 and I must therefore give others an opportunity to speak.
Lord Simon of Glaisdale: As this will be a debate to which the Minister may reply, perhaps I may give yet a third reason why the amendment of the noble Lord, Lord Lester, is preferable. The Government give flexibility to their proposed definition under paragraph (e):
Lord Hylton: The noble Lord, Lord Lester, has drawn our attention to the fact that the list of what constitutes a public authority is different in Clause 60 from the list in Clause 61. He has drawn my attention to the fact that Clause 60(3)(e) has this catch-all saving for what the Secretary of State may do in future whereas Clause 61 does not. That anomaly needs some explanation.
Lord Dubs: I think that I have already replied to the debate. I am not sure that I have very much to add. As I said, the Government are looking at some of these points and we will bring forward amendments at Report stage.
Lord Lester of Herne Hill: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 157 not moved.]
Lord Archer of Sandwell moved Amendment No. 158:
Page 29, line 12, leave out subsection (3).
"any other person designated for the purposes of this section by order made by the Secretary of State".
We have had far too much of that kind of skeleton legislation which gives extra power to the executive to legislate by order and is not subject to normal and full parliamentary scrutiny. As the Minister is looking at this matter further, I should be grateful if he would also consider that point.
6 p.m.
After Clause 60, insert the following new clause--
(" .--(1) Where a public authority to which section 60 applies proposes to take any action that may have a significant adverse impact on its ability to comply with the provisions of that section, it shall first prepare a statement of that impact (an "impact statement").
(2) An impact statement shall also include--
(a) the aims and purposes of the action proposed;
(b) alternatives to the proposed action which may achieve those aims and purposes but which are less likely to have such an impact, together with reasons for rejecting those alternatives;
(c) proposals to mitigate that impact; and
(d) a description of steps to be taken to monitor that impact.
(3) Before taking the action proposed, the authority shall--
(a) consult those likely to be directly affected;
(b) publish the impact statement in sufficiently good time to allow members of the public to make representations; and
(c) where appropriate, consult the Equality Commission for Northern Ireland, which may publish any response they make to the authority.
(4) If, following such consultation, the authority decides to proceed with the action proposed, it shall publish its decision together with its reasons.").
The noble and learned Lord said: This amendment relates to what has come to be called policy appraisal. The agreement, as I understand it, envisaged that it would happen. At the moment I do not think it appears in the Bill in the form in which it was envisaged. The Bill is now going to provide for the arrangement of schemes. I had argued that it ought also to provide for the consideration of human rights, step by step, in decision taking. This amendment suggests that there should also be an appraisal of human rights, proposal by proposal, from a local authority.
It would require that a local authority, when it was making a proposal, would draw up a statement assessing the likely impact on people in terms of human rights, setting out the aims of the proposal, setting out the possible alternative ways of addressing the same matter and setting out any steps it proposed to take to mitigate any adverse effect in relation to human rights. It would then require the local authority to consult with those likely to be affected, and with the equality commission.
It is easy to speak of human rights as though they are something which we the legislators, and then the authorities, confer on the public. The public just sits there and receives them as they are handed down. Historically and very frequently conceptually, human rights are principally about empowerment and about giving people a voice in their own destiny. That, I believe, is what many in Northern Ireland still feel is lacking, so I hope that my noble friend will understand what the amendment is trying to achieve. If there is a better way of achieving it, then of course I will listen to what my noble friend says, but until then there is
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