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Baroness Blackstone: My Lords, I do not think that anything I said suggested that the person himself had to elicit the help of a third party. That could be done by a relative, a friend, or by someone who is responsible for the care of the person. I hope I may continue. This is Report stage and perhaps some of these issues will become a little clearer.
Before I deal head on with the substance of the amendment it may be helpful if I make clear just how much could be done by the commission to assist disabled people through the powers which the Bill already provides. The existence of the commission would itself offer disabled people much more than they have at present. I am sure everyone who has taken part in these debates will accept that. The commission would have the ability to advise individuals about their rights, or even to approach an employer or service provider on behalf of an individual. It might even make such an approach, where it felt it was appropriate or necessary to do so, by a means which did not disclose the identity of the individual.
The commission will have an important role in reducing the cost of litigation for some disabled people--I believe that point was raised by the noble Lord, Lord Campbell of Croy--in financial terms, in removing some of the anxiety associated with litigation, and in addressing the needs of those less able, or perhaps unable, to take cases themselves. Where it chooses to assist an individual, the commission would--by virtue of Clause 6(2)--consider cases which raise issues of principle. The result of any such case might well affect a number of disabled people, and could remove any need for them to face the onerous task of personally seeking redress through the courts or tribunals. The commission would also have to apply criteria for assisting individuals, where it is unreasonable to expect them to take the case unaided.
Where assisting an individual raises issues of principle or where the individual could not be expected to take the case unaided, the commission could provide representation. Indeed there is nothing to prevent the commission providing a high degree of support in litigation, so long as there remains a specific individual who has been discriminated against. I believe the
commission's ability to act in these ways goes a good way to meet the concerns raised as regards litigation in courts or tribunals.But the commission's powers would not of course stop there. Noble Lords will be aware of the commission's ability to conduct a formal investigation of an employer or service provider where it believes that unlawful discrimination has taken place. The commission would not require an individual disabled person in these circumstances either to start a formal investigation or to conclude one. A conclusion could mean requiring an employer or service provider to take action to remedy unlawful acts. I believe that this would cause most sensible employers and service providers to think again. These procedures need not be slower than going through the courts--indeed they may well be quicker--and they give the commission the idea of a policing role that seems to lie behind some of these amendments. There is a major distinction, however, between the commission itself acting under these powers and the commission trying to act in place of individuals in litigation.
I am bound to add that neither the CRE nor the EOC, in their respective reviews, have sought a power similar to that which Amendment No. 21 is intended to provide for the disability rights commission. One might conclude from this that these other commissions have not found such a provision either necessary or desirable.
I have already said the commission could work to keep the exposure of an individual in any legal processes to a minimum. I reiterate that where humanely possible this should be the case. However, Amendment No. 21 seeks to go further in the name of justice. We need to examine this matter carefully. The ability to deal with a case competently may be compromised from the point of view of everyone concerned if an individual's identity was withheld. I understand that anonymity in civil proceedings in this respect is quite unprecedented and courts and tribunals would have to consider any such application fully before it could be permitted. Justice has to be done and be seen to be done. There is something instinctively unjust about an individual facing an unknown accuser, even if that person is disabled. The person may have a mental or physical disability but he has no legal disability. Indeed, he may have a very powerful case with which to attack the defendant. Justice involves being fair to both sides, and not simply being sympathetic to a disabled person--which of course we all are. That is why I am afraid to say that I cannot accept this amendment without wider consultation over whether it would be appropriate for anonymity to be granted in principle.
Even then, there is a very real difficulty with the process. The "interests of justice" is, as noble Lords will appreciate, a matter for the courts or tribunals rather than for the commission. It would not therefore be a judgment for the commission whether it could take a case on behalf of an individual. There would have to be a preliminary hearing to establish whether this was indeed a case in which it would be in the interests of justice to grant anonymity. As the amendment is drafted, it does not make provision for that earlier hearing, or
even for the status of the parties to that hearing. I do not wish to labour procedural points, but I do have to stress that the proposal requires rather more consideration before it could be made to work, even if the principle behind it were acceptable.There is a further point. By virtue of Section 62 of the Disability Discrimination Act, employment tribunals may apply reporting restrictions. That would allow for the identity of the individual to be kept private within the context of tribunal proceedings. Comparable provisions apply in the areas of sex and race. While I accept that this does not completely address all the concerns of my noble friend Lord Ashley, I believe this would address a great many of the circumstances that he has in mind.
I do not aim to cover all of the possible difficulties now, although they are potentially rather significant. I am afraid that I see--I want to be fair and honest to my noble friend--rather little prospect of being able to accept what is being proposed. However, having had very little time to consider the substance of the amendment--it was tabled rather late--I am prepared to examine it further. I hope, therefore, that my noble friend will agree to withdraw it.
Amendment No. 5 again raises the issue of representative actions. My noble and learned friend the Lord Chancellor is, as I said in Committee, considering the matter of representative actions as part of the next tranche of civil justice reforms. I am advised that the ability of the disability rights commission, or any other public body, to undertake cases will form part of that consideration.
Perhaps I may draw a parallel here with the existing equality commissions. In Committee my noble friend made reference to the Equal Opportunities Commission and the CRE pursuing similar powers to those which this amendment is intended to allow to the disability rights commission. My noble friend Lord Morris made particular reference to it. It may help if I clarify exactly what the existing commissions have recommended in their reviews and why.
The EOC has said in its review that it believes that it should have wide powers to bring proceedings in its own name. Practices which discriminate usually affect groups of people rather than individuals. The right of the EOC to bring proceedings would allow discrimination against an entire group or class of people to be addressed. While not explicitly recommending an extension of its powers to initiate proceedings, the CRE has raised the issue of class or group actions in its review. The CRE's proposal would allow it to consider a complaint where discrimination affects a number of people without the need for each individual to bring separate proceedings. So both bodies want to be in a position to assist classes or groups of individuals in what have become known as representative actions. I readily acknowledge that.
This is a complex and wide-ranging issue and the scope and form of such proceedings will have to be fully worked through. Areas that will have to be considered include what type of bodies or organisations should be able to bring representative actions; the scope of relief
that should be available in this type of action--for example, injunctions and damages. Consideration will also need to be given to whether it should be possible to represent an unidentified group such as all consumers or, perhaps, certain groups of disabled people. Other issues such as the right of individuals to pursue their own proceedings, the impact that any proposals might have on the courts and businesses, and the relationship with multi-party actions will also need to be taken into account.It would, I believe, be unwise for us today to seek to make a unilateral decision about this for the disability rights commission. Moreover, it would not work, because court procedures need to be changed in order for them to be able to deal with these sorts of actions and offer proper remedy. But let me assure noble Lords that we will seek to ensure that organisations which are offered new rights to take representative actions include the disability rights commission.
As I promised in Committee, in response to a request from the noble Earl, Lord Russell, I have brought the relevant parts of that debate concerning this matter to the attention of my noble and learned friend the Lord Chancellor. In his reply to me, my noble and learned friend assured me that he is prepared to consult, through the Representative Actions Working Group, with those who have an interest in this matter. In due course, my noble and learned friend will be issuing a consultation paper. This consultation will inevitably come to an end after the Bill has received Royal Assent, as I made clear at the Committee stage. However, any new provisions about representative actions can be applied to the commission later.
Through Amendment No. 22, my noble friend Lord Ashley and the noble Baroness, Lady Darcy de Knayth, seek to allow the commission to seek an injunction to prevent unlawful acts under Part III of the Disability Discrimination Act. By virtue of its general duty, set out in Clause 2(1), to work towards the elimination of discrimination, the Bill already allows the commission to involve itself in such a way as to prevent discrimination. I agree with what the noble Lord, Lord Renton, said in that respect.
The commission could begin by approaching a service provider, perhaps through a letter or even a phone call, and offer a view about how any discrimination might be avoided. This might be all that is required for the organisation to put matters right. One should not underestimate the effect of such an approach by the commission. I am bound to say that the commission's ability to pursue matters through a formal investigation and, if necessary, to issue a non-discrimination notice, would, I believe, act as a very significant deterrent to service providers who were in danger of discriminating.
I accept that one needs to face the possibility, however remote, that an employer or service provider might still pursue actions which the commission believes could eventually lead to unlawful discrimination even after the commission has fired a shot across their bows. Amendment No. 22 is intended to allow in that circumstance for the commission to
apply for an injunction. On what basis could the court grant an injunction? To establish whether an unlawful discriminatory act under Parts II or III of the Disability Discrimination Act has occurred, a court would require evidence that a disabled person has suffered or would suffer discrimination. That has to mean that the court would have no basis for granting the commission itself an injunction because the commission could not itself suffer unlawful discrimination. It would, however, be possible for the commission to support a disabled person who himself had sought an injunction. For these reasons, I hope that my noble friend and the noble Baroness will agree to withdraw Amendment No. 22.I turn now to Amendment No. 13 and the second part of Amendment No. 5, which deal with the question of the commission intervening in litigation. There is nothing in the Bill as drafted to prevent the commission from making an application to any court whose procedures allow such applications to be entertained. That certainly includes appellate courts such as the Court of Appeal and the Judicial Committee of this House. It is usually only indeed at the appellate stage, when issues of fact have been described, that it is possible to see that a question of principle has arisen so as to make representation to the court by bodies such as the commission appropriate. Given that the commission will be fully entitled under the powers it is given in the Bill as drafted to make application to be heard in such circumstances, there appears, as the noble Lord, Lord Renton, discerned, to be no need for an amendment on this point.
The question relating to tribunals is somewhat different. The nature of tribunals does not allow intervention in the same way as court procedure--that applies in the same way to any organisation as it would to the disability rights commission. However, the commission could approach a disabled person and ask to assist with his or her case if it felt that there were wider issues at stake. I am sure noble Lords will agree that that is the right basis on which to proceed--with that party to proceedings in agreement. It is simply not necessary to place on the face of the Bill something that the commission can already do. I understand why my noble friend feels that this might be a useful precaution, but it would not make the power any more real. Commissions can already intervene, as I believe the noble Lord acknowledged. If they do not intervene in practice there is no reason why they would do so if they had an express power in the Bill.
I hope that I have provided some reassurance as to the considerable scope that the commission will have to assist individuals and to take part in proceedings. I can assure noble Lords that we shall not lose sight of the effect of any new arrangements on representative actions on the commission. I hope that noble Lords will therefore agree that we should not, through this Bill, seek to make fundamental changes to the legal system in this country which properly belong to a wider discussion.
As I indicated in Committee, the disability rights commission would--as the EOC and the CRE already can--be able to apply to the High Court for judicial review proceedings. Again, that point was made by the
noble Lord, Lord Renton--although I accept that judicial review applies to public bodies and not to private ones.I now turn to the points raised by my noble friend Lord Morris and the noble Baroness, Lady Blatch. I reject the notion that the disability rights commission will have less power than other commissions. Where there are equivalent provisions in sex and race legislation, its powers will be similar to those of the sex and race commissions. Indeed, in some areas we have made clear our intentions to develop the processes so that they are clearer and more robust. The commission will, for example, have a statutory power to enter into written agreements. I indicated in Committee our commitment to strengthening the non-discrimination notice stage of the formal investigation process. That is a matter to which we shall return later on Report.
However, my noble friend is correct in that both the EOC and CRE can initiate proceedings in particular circumstances which the disability rights commission would not be able to do. The areas concerned are discriminatory practices; advertisements; pressure and instructions to discriminate; and persistent discrimination. They relate to specific provisions in sex and race relations legislation which do not appear in the DDA, and that is the reason for the difference. As such, they could not be replicated in this Bill, the scope of which does not allow us to make amendment to the DDA more widely.
I return to the fact that the Disability Rights Task Force is examining how best to achieve comprehensive and enforceable civil rights for disabled people. We should not pre-empt its recommendations. I assure noble Lords that the Government will consider very carefully the recommendations put to us by the task force and whether changes need to be made to the DDA, and any consequential changes to the role and functions of the disability rights commission.
In the light of that explanation--and I apologise for its length--
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