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The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 13, 21 and 22.
The concern of disabled people and disability organisations, and I am sure the Government, is that the long-awaited disability rights commission should be a really effective body. Disability has trailed behind gender and race in getting anti-discrimination legislation and a commission. One advantage is that the new commission can benefit from the lessons the other two have learnt along the road.
These four amendments are crucial to the Bill and I may take a little longer than usual in explaining them. Experience has shown that the right to initiate proceedings is a power that can overcome present inadequacies and greatly enhance effectiveness. That is the objective of this amendment. I am sure that your Lordships will have noted that to exercise the power for the commission to initiate proceedings, permission from a court or tribunal is required. That is an extremely important safeguard. The commission would have to
My noble friend the Minister said in Committee, understandably, that these amendments could not work legally because the commission itself was not a disabled person, could not be discriminated against as such, and hence could not initiate proceedings. She was right to make that objection and, thanks to the superb Public Bill Office, we have changed the wording so that the amendment now legitimately will say that the commission may bring a complaint on behalf of the complainant. In light of that change to accommodate my noble friend, I hope she will now be able to agree to this important amendment. It refers to three situations where it may be appropriate for the commission rather than the individual to act.
The first is the nature of the claim. Where a class of disabled people is affected by a discriminatory act it would be efficient and cost effective for one action to be taken. In addition, in cases such as harassment, it could well be preferable for the commission and not the victim to lead in court. Secondly, some people with learning difficulties or mental health problems may benefit from having a third party taking the lead so as to ensure that there is full and proper communication. Thirdly, some disabled people could find the legal process excessively daunting and stressful. Most of us would find court procedures stressful, but for some severely disabled people the stress could be excessive and exacerbate their condition. In other countries discrimination proceedings have special provisions such as private hearings, more informal hearings and specially trained staff and adjudication. It is widely recognised that special provision of some kind can be required in some cases.
The second part of the amendment gives the commission the power to bring an injunction to prevent an unlawful act. "Prevention" is the operative word. The DDA imposes some, albeit rather limited, obligations on service providers and these will be in force by 2004. In Committee, the Minister stressed the many advantages of the judicial review procedure and pointed out that the commission could make use of it. The problem now is that judicial review is possible only for public bodies, not private ones. It also has its limitations which cast doubt on how effectively it could meet disability discrimination concerns. This part of the amendment gives the commission the necessary power to act quickly and simply if the obligations of the 1995 Act on service providers were being ignored. I hope that my noble friend the Minister will carefully consider the amendment. She will know how strongly noble Lords and disability organisations feel on these issues. The particular needs of disabled people in their search for access to justice should be recognised. That is the objective of the amendment.
Amendment No. 13 seeks to give the commission the express power to take part in proceedings between two parties. I appreciate that my noble friend said that the commission will have the power to intervene. We accept that from the Minister but we need the assurance in the
I am grateful to Michael Rubinstein, co-editor of the Equal Opportunities Review and editor of Industrial Relations Law Report, for advice on what I say next. Employment appeals tribunals are heavily dependent on the arguments and points put to them by the advocates appearing in court. This is even more so with the Court of Appeal and the House of Lords. The history of discrimination law is littered with appellate cases in which the applicants were unrepresented or badly represented.
The commission may decide that a particular appeal raises an important or possibly vital point of law but that the complaint is of little merit on its facts and therefore does not support the applicant. The commission under those circumstances should be able to put forward its view on how the statute should be construed.
The commission may be unable to fund the case because of budgetary constraints. In the High Court, the Court of Appeal and the House of Lords, the losing party is liable for the successful party's costs. The costs of intervening in a case to make a submission are minimal by comparison. An applicant may be pursuing a very important case without reference to the commission, say, because they are self-represented or have financial support. This means that the commission can only watch from the sidelines, even where the issues to be considered are of immense potential importance.
There is nothing in the law to stop statutory commissions asking the court to be a party to the proceedings or to be permitted to submit an amicus brief. I am sure that my noble friend will point that out. The reality is that this has hardly ever happened, so there is absolutely no point in that theoretical justification. What is needed now is an express statutory power for the relevant commission to make submissions to a tribunal or court where it considers that it is in accordance with its statutory objects and is in the public interest to do so. I believe that this should be an important part of the commission's strategic legal role.
My final point is that commissions are the legal guardians of their legislation. They have unique expertise to which deference should be accorded by the courts. They should be given the power to protect the interpretation of the law. Amending the Disability Rights Commission Bill to give the commission this power would be exactly the right way to begin. I beg to move.
Lord Campbell of Croy: My Lords, I am not sure whether three other amendments in the grouping are being taken with this one, but I support what the noble Lord, Lord Ashley, has said in general. I shall be interested to hear what objections the Minister may have to carrying out the purpose of the amendment that has been proposed. It seems to me that there are likely to be cases where time, trouble and expense could be reduced or avoided for all concerned if it were possible for the
I do not think the noble Lord, Lord Ashley, mentioned it but I understand that the amendment would enable the commission to outlaw advertisements which discriminated against disabled people. If so, that is another point which makes the amendment very acceptable.
Lord Morris of Manchester: My Lords, in rising to support these amendments, I want first briefly to endorse the warm tribute paid by my noble friend Lord Ashley to Agnes Fletcher and others in the voluntary sector who have done so much to help noble Lords in all parts of the House in seeking to improve this important Bill.
In relation specifically to Amendment No. 21, the ability to step in and take on a case on behalf of a disabled person seems to me to be a useful additional power for the commission to have. It differs slightly from the powers provided in Clause 6 which I understand apply only to cases raising questions of principle. In its response to the consultation on the functions of the disability rights commission, the Association of Disabled Professionals firmly asserted:
The proposed new clause would sensibly allow the commission to apply to the court or tribunal for leave to initiate proceedings whenever it considered it would be in the interests of justice to help individual disabled people, regardless of whether a case raised a question of principle. A person with a mental health problem, for example, might well be adversely affected if she or he were to pursue a particular case. This amendment would allow the commission to get permission to pursue the case in the interests both of the individual and of others in similar circumstances. This seems to me to be an unexceptionable but very useful increase in the powers of the commission.
The second part of the proposed new clause calls for powers which both the Commission for Racial Equality and the Equal Opportunities Commission have asked for in their review in the light of their long experience. I was grateful to my noble friend the Minister of State for correcting her reply to me on this point in Committee and for confirming my statement that both the Commission on Racial Equality and the Equal Opportunities Commission had indeed asked for such powers.
In Committee, my noble friend the Minister of State explained at length and with great care how the wording of the original amendment was defective. I hope that the current wording avoids the difficulties that she cited. The use of such a power to initiate proceedings in its own name could be especially valuable in the early days of the Disability Discrimination Act when knowledge of its scope, the reasons for it and how discrimination can
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.").
5.15 p.m.
"We are of the opinion that the Commission should have the power to assist any individual. We would therefore be particularly unhappy if the word 'special' was used and given too limited a meaning in the legislation".
Unfortunately, the existing Clause 6 does just that.
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