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Lord Campbell of Croy: My Lords, I support the amendment moved by my noble friend. It seems to me that as the Bill stands, with the word "may", subsection (2) might as well not be in the Bill at all. What is the point of having a commission if it is not there to encourage good practice? We should all take for granted that the commission will do that in any event.

I have been involved in this argument about "may" and "shall" over the past 40 years in both Houses, although I know that that is not as long as my noble friend Lord Renton. But I know that this argument is raised every now and then. But in my opinion there is no point in having subsection (2) at all with the word "may" because it looks as though the commission would never encourage good practice at all unless it were given the ability to do so. Therefore, what my noble friend said should be considered seriously.

Lord Addington: My Lords, I liked these amendments in Committee and I like them now. As the noble Lord,

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Lord Campbell, said, if the commission is not going to take on an active, even an aggressive, role in encouraging good practice, we might as well not be wasting our time now. There is no point unless the commission has a clear duty in taking on those roles in the most active way possible.

As regards Amendment No. 4, government agencies are part of government. As the noble Baroness said, the Government must point us in the right direction. If the Bill is to fulfil the function which we all assumed it would have, those matters must be on the face of it. It is a waste of time to have a situation in which there is no direct commitment because there are always 101 reasons for not doing something. We are trying to make sure that things are done through an agreed procedure to which we can look to ensure that they are happening.

Lord Hughes of Woodside: My Lords, I listened to the noble Lord, Lord Campbell of Croy, who said that he had been engaged in discussions and debates on the use of the words "may" or "shall" for more than 40 years. That reminds me of a Bill in 1970 which was put forward by the then Secretary of State for Scotland, the late Lord Ross of Marnock, then Willie Ross. It was lost because of the general election and reappeared immediately after the election with precisely the same wording except that the names on the face of the Bill were different.

Willie Ross said to me, "We need to take up some time in the House of Commons because there are other important Bills coming forward and we must allow time for them to be prepared". He said to me, "Come to my office and we will prepare amendments to this Bill". In my naivety at the time I said to him, "How can you possibly amend a Bill which you drafted and laid before the House?" He said, "Just take your pen and sit beside me, laddie, and do as you are told". Those noble Lords who remember the late Lord Ross will recall that that is exactly how he would behave. He said, "We shall go through the Bill and every time we see the word 'may', we shall table an amendment, 'delete "may" and insert "shall"' and then when we have done that, we go back to the beginning and go through the Bill and every time the word 'shall' appears, we table an amendment, 'delete "shall" and insert "may"'". That was a nice time filler.

I do not suggest for one second that the noble Baroness is engaging in such an exercise. But looking at the Bill, it seems to me that the words "may" and "shall" are interchangeable and except in relation to one part, with which I shall deal in a moment, it would not matter one whit whether the words "may" or "shall" are used entirely throughout the Bill provided that the disability rights commission approaches its work with the aim of being against discrimination.

I would say that the only place where those words are not interchangeable is in Clause 2(5) which states:

"The Commission may make charges for facilities or services made available by it for any purpose".

If we inserted the word "shall" it would mean that every time the commission did something--gave advice or made available facilities--it would have to charge for it. None of us would want that.

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I do not know how the Minister will reply to the amendment but I believe that it does not matter whether "may" or "shall" is used. Therefore, he could accept the amendment since it makes no difference.

I have a little more difficulty with Amendment No. 4. The Bill makes it clear that:

"The Commission may ... make proposals or give other advice to any Minister of the Crown as to any aspect of the law or a proposed change to the law",

and further on it goes on to say when other advice may be given or sought.

There is some merit in Amendment No. 4 because we live in a period where a great deal of government work is not carried out directly by the Government, for example, the Department of Trade and Industry and the Department of the Environment, Transport and the Regions. There is a great deal of indirect influence. There are different commissions dealing with the environment and different arrangements in relation to health. I do not wish to transgress on English matters, but I know that in Scotland in the main the health service is delivered not directly by the Secretary of State, except through payments, but by the health boards. As the Health Bill goes through this House, there will be changes to the administration of the health service. The principle will be the same; namely, that those agencies carry out the work on behalf of the Secretary of State for Scotland. I imagine it is the same for England.

Therefore, we should provide that the DCR may be able to make proposals or give other advice to any government agency as to the practical applications of the law. There are some who say that the problem with legislation is that it is too verbose and goes on for pages and pages repeating itself in order to try to cover every possible eventuality. We know that that is not possible. It may well be that my noble friend will say that Amendment No. 4 is encompassed by the words of the Bill in Clause 2(3)(b). But I always err on the safe side. In government parlance that does not mean keeping things out of the Bill. It is always better to put them in and be safer in that way.

Lord Campbell of Croy: My Lords, will the noble Lord give way for a moment? I was fascinated by his recollections of the late Lord Ross of Marnock, for whom he will know I had great admiration. I worked with him a great deal in the other place as well as here, particularly behind the scenes. But his story of going through one of his own Bills when he had gone into opposition and making the changes from "may" to "shall" might have been completed by the noble Lord pointing out that I was the successor, the Secretary of State who came in and had to cope with what was then done. Four years later Lord Ross then succeeded me and I could have had some revenge, but I did not.

Lord Hughes of Woodside: My Lords, I am sure that in his own subtle way the noble Lord did try to get his revenge. It is clear in my mind that neither the late Lord Ross of Marnock when he was Secretary of State ever accepted an amendment from the noble Lord, Lord Campbell of Croy, nor, indeed, vice versa. There is

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always a tendency for Ministers to be locked into refusing opposition amendments, I am sure for very good reasons. I am sure that is not done in a spirit of, "Well, we are the Government and we are not going to make any changes anyway". This Government have a good record for at least listening to discussions and debates. They do not always give way. Oppositions are not always right any more than governments are always right. Oppositions are not always wrong any more than governments. There is some particular merit in Amendment No. 4. If my noble friend is unable to accept the exact wording I hope that he will reflect on the point.

One of the important factors is the way in which the DRC is seen by the public. If the perception and impression is that it is coming forward with restrictions that sets it off to a bad start. One factor which is common to both sides of the House is that everyone wants the Bill to succeed.

4.30 p.m.

Lord Renton: My Lords, the noble Lord, Lord Hughes, tried to convince your Lordships that the words "shall" and "may" mean the same thing. I assure him that it depends on the context. There have been statutes, mainly referring to the obligation of individuals, about which the courts have held that those two words are vague, and they would administer justice according to their interpretation of the particular statute.

But here we clearly have a statute which uses the word "shall" as indicating that the commission shall have a duty. It clearly uses the "may" as indicating that it has a power. We must bear in mind that difference in the context of the Bill.

I support those who have argued very convincingly in favour of Amendment No. 3. Perhaps I may add just one word to Amendment No. 4 and to the arguments that have already been used. Clause 2(3)(a) states that the commission may,

"make proposals or give other advice to any Minister of the Crown".

It is suggested that he should have the power to do roughly the same thing for any government agency. I should have thought that the Government would have welcomed that proposal with open arms for this reason. If the commission saves a Minister or a government from the trouble of getting in touch with a government agency for which they are answerable in Parliament, it might save time and public money within the Civil Service. There is a great deal to be said in favour of Amendment No. 4.

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