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Lord Cope of Berkeley: My Lords, I hesitate to intervene in a legal reading of the Bill. However, the provision of goods, services and facilities to the public must be implied by the Bill. Some public authorities' sole function is to supply a service. If it did not include goods and services without the necessity of specific reference, the clause would be in some cases totally ineffective.
If we were to insert the words "including goods or services", would we not also have to insert them in Clause 75(1)? Otherwise it might be held that by comparison Clause 76 applied to goods and services and Clause 75 did not. That would not be satisfactory. I hope that the amendment is unnecessary. I agree with the purpose underlying it, wishing to include public authorities supplying goods and services in the clause. I hope that it is unnecessary to achieve that purpose.
Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, perhaps I may say that I agree with him that it seems extraordinary if such provision is not covered. However, the reason that it may be held not to be covered is the curious reasoning of a majority of the Law Lords in the case of Re Amin under the Race Relations Act, holding that marketplace functions only were within the scope of that legislation, and not provision of goods and services by a public authority. It is only for that rather boring reason that I wish to ensure that what the noble Lord, Lord Cope, said, is intended to be reflected in Clause 75, and will be reflected in any consequential amendment to the fair employment legislation.
Lord Cope of Berkeley: My Lords, the noble Lord has indicated why I was unwise to tread in these legal waters.
Lord Dubs: My Lords, Amendment No. 16 proposed by the noble Lord, Lord Lester, would add to the definition of "functions" in respect of which discrimination is banned,
- "functions relating to the provision of goods, facilities or services".
However, perhaps I may cover the point about the fair employment and treatment order which I mentioned earlier. That gives effect to further aspects of the White Paper, Partnership For Change. Among other things the order will extend the protections available under fair employment legislation in Northern Ireland to cover provision of goods, facilities and services. The difference between the forthcoming fair employment and treatment order and this clause is that the new order will cover indirect as well as direct discrimination.
In this Bill we are simply re-enacting the relevant provisions of the 1973 Act. But the order to which I referred would clearly extend into indirect as well as direct discrimination.
Lord Lester of Herne Hill: My Lords, before the Minister sits down will he be so kind as to explain one matter? Will that protection against discrimination apply to public authorities as well as to private bodies? Will it apply to government and public authorities? It sounds as though it will. Perhaps I can have clarification on that.
Lord Dubs: My Lords, the answer is yes.
Lord Lester of Herne Hill: My Lords, that is a most welcome announcement by the Government. It seems to me to fill an important gap. I express great appreciation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Clause 77 [Unlawful oaths etc.]:
Lord Dubs moved Amendment No. 17:
The noble Lord said: My Lords, this amendment is a matter of drafting. It omits a duplicated reference within the clause to a Northern Ireland department. Without the amendment Northern Ireland departments would be included both in subsection 4(d) and subsection (5) of the clause. I beg to move.
On Question, amendment agreed to.
Clause 80 [Legislative power to remedy ultra vires acts]:
Lord Kingsland moved Amendment No. 18:
The noble Lord said: My Lords, this amendment seeks to exclude the words "or expedient" from Clause 80(1) which states,
Amendment No. 19 concerns the circumstances in which subordinate legislation might be issued to affect an ultra vires decision either by a Minister or by a Northern Ireland department. The reason for the amendment is to inquire--ultra vires what? Is the clause intended to affect decisions by a Minister that are ultra vires the reserved powers; or is it intended to affect decisions which are ultra vires other legislation such as European Community legislation, the Human Rights Act or certain categories of international obligation? Or is it intended to go even further than that and affect ultra vires in the general sense that it is used in administrative law? If it is the latter, then I express great concern; because it suggests that, for example, subordinate legislation could issue to change a court's decision that an act of a Minister was against the rules of natural justice.
I have one final point to make in relation to Amendment No. 19. If subordinate legislation is going to issue in one or other of these circumstances, when will that act take place? I can quite understand that it might take place after a court has taken its decision. I put it to the Minister that it would be quite improper for it to issue during litigation. I say that because it is a well established principle in regard to the separation of powers, that the courts do not interfere in parliamentary proceedings and parliament does not interfere in judicial proceedings. I shall be most interested to hear from the Minister whether or not there is intended to be some constraint on the timing of the issue of any subordinate legislation that the Minister might consider necessary. I beg to move.
Lord Lester of Herne Hill: My Lords, I agree entirely with everything that the noble Lord, Lord Kingsland, has said. He has raised several important points which need to be addressed at this late stage in the passage of the Bill. I entirely agree with him that the words "or expedient" are unnecessary in Clause 80(1).
I would like to explain why I believe it important, not merely on the grounds of drafting, that we do not put in more words than we need in that clause. As I understand it, the scheme of the legislation is, wherever possible, to leave it to the courts to resolve issues of vires and to avoid Ministers becoming embroiled in political disputes and using override powers to remedy ultra vires acts except where necessary.
The way in which Clause 80 is drafted at the moment gives ample scope for discretionary powers to be exercised by the Secretary of State because, as the noble Lord, Lord Kingsland, said, it does not say,
As regards the other points raised by the noble Lord, Lord Kingsland, again I entirely agree with him. We must be very careful to ensure that the way in which a Minister's override powers are exercised does not conflict with the rule of law and the judgments of the independent judiciary whether retrospectively or otherwise.
Lord Dubs: My Lords, we have had a thorough debate of the clause on legislative power to remedy ultra vires acts, to which these amendments refer, in Committee and on Report. The clause is based on Clause 107 of the Scotland Bill, which your Lordships have approved. Amendments Nos. 18 and 19 would change aspects of the clause which correspond to the Scottish provisions.
The first amendment would confine the Secretary of State's present power under the section to make provision she believes necessary or expedient, to solely that provision that she believes necessary. I believe this is a bad amendment because it creates uncertainty. There may be a range of steps that have to be taken in order to deal with the consequences of a finding of invalidity of legislation that has been widely relied on for years. It might be a point of endless argument among lawyers whether such steps were necessary, or merely expedient. The fact that the Scottish clause refers to expedient provision might lead to a particularly narrow view being taken of the scope of this provision, if it were amended. Such uncertainty might lead to us being unable to take steps in Northern Ireland that might be taken in Scotland, and provoke possible further litigation itself.
An order under this clause is subject to affirmative resolution at Westminster, and we gave undertakings earlier of consultation with the devolved authorities if this clause was used when there had not been a court judgment. Those are substantial safeguards against any possibility of abuse. Neither do I believe it justifiable to confine the use of the clause to the cases set out in Amendment No. 19. Those are certainly the primary cases at which the clause is directed. But it is possible to envisage other kinds of cases, under other legislation, where a provision may be ultra vires, and hardship would occur unless the consequences could be ameliorated by an order under this clause.
The clause may be something of a last resort, and other more conventional courses, like corrective legislation by the assembly, might well be more appropriate in many cases. But there may be cases
Perhaps I may elaborate on the point made about subordinate legislation, which we discussed at Report stage. My noble friend Lord Williams said that the Secretary of State's power in that respect is judicially reviewable. That consideration would also weigh heavily on the mind of the Secretary of State if she sought to make legislation where action was pending in the courts. As I said before, we should recall that such orders are subject to affirmative resolution.
Page 40, line 15, leave out ("department or authority") and insert ("authority (other than a Northern Ireland department)").
Page 41, line 10, leave out ("or expedient").
"The Secretary of State may by order make such provision as he considers necessary or expedient".
Besides being rather chilling, the word "expedient" in this context is also otiose. The word "necessary" is cast in subjective terms. The expression is, "he considers
necessary". I believe that that is sufficient to encompass any acts of expediency that the Secretary of State may wish to commit. If the Minister does not agree with me perhaps he would like to speculate on what acts of expediency the Government might have in contemplation that go beyond a subjective analysis of necessity.
"make such provision as is necessary ... in consequence of"
but,
"make such provision as he considers necessary".
17 Nov 1998 : Column 1216
That is a subjective discretion which will only be reviewed by the courts if the Minister takes leave of his or her senses. The words "or expedient" are a rigmarole or boiler plate statutory language, which one finds again and again in modern Bills. They are simply put in for the administrative convenience of the government of the day who say to themselves, "Let us shove in the words 'or expedient' in case there is some other reason that we cannot think of at the moment which might arise in the future and make quite sure that we have very wide powers indeed". Since this provision is expressed in subjective form, it is not necessary or expedient to include the words "or expedient" in the Bill.
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