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Lord Swinfen: I think that it is intended in the Bill--the Minister will correct me if I am wrong--that the commission will encourage good practice, and it will have a duty to do so. The word "may" is purely permissive and may also be considered as "may not". The word "shall" is an imperative and has to be obeyed.
Lord Rix: I consider that the word "may" is as much a weasel word as the phrase "when resources allow". I should have thought that it was perfectly easy to remove subsection (2) and to make it part of Clause 2(1) as a new paragraph (d). Clause 2 would then read:
- "The Commission shall have the following duties--...
- (d) to encourage good practice regarding the treatment of disabled persons in any field of activity".
Lord Hunt of Kings Heath: I have not been a Member of your Lordships' House for very long, but long enough to know that the issue of "shall" and "may" provides us with many happy hours of debate. I would hazard a guess that the noble Baroness, Lady Blatch, has been on the other side of the fence, in times past, on this issue.
The noble Baroness seeks, through Amendment No. 3 to make it a duty of the commission to encourage good practice. It may be helpful if I provide some clarification. Clause 2(1) of the Bill sets out the commission's primary duties, which include working towards the elimination of discrimination against disabled people and promoting the equalisation of opportunities for disabled people. There is some overlap between the duty to promote the equalisation of opportunities and encouraging good practice. However, to avoid any doubt, Clause 2(2) makes clear the commission's ability, within its general duties, to encourage good practice.
Noble Lords are, of course, aware of the importance of encouraging good practice in the context of disability. It will be essential that organisations learn from each other, and from disabled people, how to avoid discrimination and how to find solutions to difficulties which may arise.
Sometimes what is useful and most effective goes beyond what is strictly required by legislation. Simple things like disability awareness and disability etiquette training can do much to change attitudes as well as help to avoid unlawful acts of discrimination. There is no doubt that the disability rights commission will have a key role to play in identifying good practice and helping to spread the message to others who may benefit from adopting it.
I do not disagree at all with the noble Baroness and other noble Lords who have remarked on the importance of education.
The intention of the drafting of Clause 2(2) is to allow the commission flexibility in how it promotes good practice where it thinks it appropriate. I hope that all noble Lords will agree with me that the commission should be free to decide--and indeed would be best placed to know--what that is at all times. I fear that placing a duty on the commission to do so may well have the effect of constraining it, rather than giving it flexibility.
Perhaps I may illustrate that. The duty extends to any field of activity in the context of disability discrimination. That covers many fields. One must ask whether it would be right to make it mandatory for the commission to be active in every one of those fields at all times, or does the best use of the DRC's time and resources require the exercise of good judgment and discretion? Therefore, I ask the noble Baroness to withdraw the amendment.
I turn now to Amendment No. 4. Of course, the commission should have the ability to offer advice on the practical application of the law--to government agencies, for example, the Health and Safety Executive, and to others--whenever it believes it necessary or sensible in connection with its general duties, with a view to eliminating discrimination or equalising opportunities for disabled people. I can confirm that the Bill allows for it to do so.
Clause 2(3)(a) refers specifically to providing advice and information, but Clause 2(1) provides the terms of the commission's general duties and allows the commission to do anything that it wants, within those general duties--that is, anything that works towards the elimination of discrimination against disabled people and/or equalises opportunities for disabled people in any field of activity. That applies to government agencies also.
I hope that noble Lords are persuaded that Clause 2 allows the commission sufficient powers in this respect and that this amendment is unnecessary. I therefore ask the noble Baroness not to move it.
Baroness Blatch: I am grateful to the Minister for his response. However, I am not entirely satisfied with what has been said. Nevertheless, it is still only "may" encourage good practice regarding the treatment of disabled persons in any field of activity. The noble Lord has not emphasised the duty to do so. The Bill provides only for the commission to do what it wants to do. Given that encouraging good practice will be the commission's predominant task, there should be a requirement on it to do so, rather than the commission having merely a discretionary power, as is provided on the face of the Bill.
I do not mind how that is achieved. The noble Lord, Lord Rix, made a good and practical suggestion. I would support achieving our objective in that way. We shall
certainly return to this amendment at the next stage because it is important to press such a duty on the commission.On Amendment No. 4, I am grateful to the noble Lord, Lord Addington, for specifically asking for us to be guided to the part of the Bill where the Government's intention is made clear. In fact, the Minister guided us to Clause 2(3)(a). There is nothing in that provision which, in a legal sense, gives a duty to advise government agencies. It simply says that there is no limit to the commission's powers and that it can, if it wishes, advise anybody it likes. What I was trying to say is that it should be required and have a duty pressed upon it to advise government agencies as well as government. Why, for example, have a subsection (3)(a) and a subsection (3)(b) if we are not prepared to consider including government agencies? They provide a very large part of public services these days.
I am decidedly dissatisfied with the response given by the noble Lord. I am sorry he cannot be more encouraging in saying that it will be spelt out somewhere on the face of the Bill that "government departments" includes government agencies. I believe the noble Lord, Lord Ashley, too, has put down an amendment referring to government programmes. I feel that agencies should be referred to in a much more specific way. We shall certainly return to this, and I beg leave to withdraw Amendment No. 3.
Amendment, by leave, withdrawn.
Lord Ashley of Stoke moved Amendment No. 5:
The noble Lord said: I beg to move Amendment No. 5. This is very important and I hope it will be given a warm welcome by my noble friend the Minister. It is going to save the Government money, and anything put forward in that respect ought to be welcomed by any Minister.
Basically, this amendment will enable prevention--which, as we know, is far less costly than expensive cures--and as it stands the Bill means that the commission can only assist individuals to bring cases. The CRE and the EOC have greater powers, which enable them to take action under their own name in some circumstances. If the commission could initiate such proceedings and prevent discrimination from occurring, there would be no need for all the paraphernalia of non-discriminatory notices, tribunals, courts and all the rest of it.
My noble friend says that she is anxious not to have too many legal cases and so become too involved and too absorbed in the law. I fully agree; and we all hope that this commission will be constructive. Nevertheless, if we are going to avoid that kind of thing, the sooner we can stop discriminatory action arising the better. In situations where discrimination has been practised, it would be more effective if the commission could act with disabled people as witnesses.
The experience of other commissions has shown that the promotion of equality and the eradication of discrimination cannot be achieved through individual cases alone. The combined strategy of test cases, powers to investigate and provision for action plans is required. Relevant powers should be in place from the start. To take a point I was making a little earlier, if we are able to stop something from happening, it is far better than trying to fix it if it is not broken. A classic example perhaps might be if a bus company decided to build a new bus station that was inaccessible, contrary to the requirements of the Act. The commission should not have to wait for someone to complain to it while the bus station is being built. If it had the power to bring an injunction to stop that building going ahead, we could avoid a very great deal of trouble.
The EOC and CRE have called for the power that we are asking for by means of this amendment to be granted. Experience has indicated very clearly to them that this power is vital to the proper running of a commission and these commissions know from their own experience that it is necessary. I should be very surprised if my noble friend is unable to meet us on this issue. This is one of the most important amendments of this whole batch brought before the committee. If my noble friend is unable to agree, then I am afraid this is something which will be fought very strongly both in your Lordships' Chamber and in the other place. We feel very deeply about this and, given her usual co-operative attitude, I fully expect this amendment to be met with the words, "We accept this amendment without debate".
Lord Swinfen: I support this amendment. Disabled people, as a general rule, are not as wealthy as those who are not disabled and they may well not be able to bring cases on their own behalf because they cannot afford it. With the changes that are being made to the legal aid system, in my view they are going to be even less likely to afford it.
If the commission has the power to bring actions, that power alone will very often be sufficient to persuade those who are being discriminatory to stop their bad practices, and to move them in the right direction. If you do not have a stick you cannot wave it. I am not advocating that people should go round with sticks, waving them or using them, but they are very useful to have in the back of the car on occasions.
Page 2, line 7, at end insert--
("( ) The Commission shall have the power to initiate proceedings in its own name or to apply to intervene in proceedings if it believes that an unlawful act has occurred or is about to occur under the 1995 Act.").
4.45 p.m.
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