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Baroness Blatch moved Amendment No. 14:
The noble Baroness said: My Lords, as I feel strongly about the matter, I wish to press the Minister for greater clarification of what he said in Committee. The need for the commission to be as effective as it can be and as far as possible to keep cases out of the courts unites all noble Lords who have spoken on the Bill. I introduced the notion of suspension, that where proceedings have begun, and where there is some understanding and some realisation that compliance can be achieved without pressing further, the procedure should continue only if compliance is not achieved, rather than simply stopping or suspending the case and, if necessary, in the future dropping it. I believe that adds one more stage to the process which adds flexibility and does little more to keep cases out of the courts.
In replying to the amendment, the Minister said, first, that he would write to my noble friend Lord Renton about the potential compromise character of the agreements to which my noble friend referred. I am not sure whether the noble Lord has done that. Normally such letters are passed around other Members. If he has written, I would be grateful to see a copy. Secondly, the Minister said that the provision, as drafted, allows a range of possible steps to be agreed, including simple suspension.
I have re-read the Bill, including this clause, but I am not entirely clear how the words on the page achieve that. I would be grateful to the Minister if he could tell me where what I want to achieve by the amendment is fully subsumed in the Bill. I beg to move.
Lord Swinfen: My Lords, I want to support the amendment. If the commission is completely satisfied that the person or firm that has been offending is determined not to re-offend, it can withdraw completely. If it is not satisfied, as the Bill is drafted, it can take such people to court. If there is an individual who says that he will do what is suggested, but the commission is doubtful, because the individual is not very reliable, the commission will be in a position to suspend action which means that the commission can hold the matter over the person's head and make certain that he will undertake that which he has promised. That is an extremely useful tool.
I do not know whether the noble Lord--he looks as though he is going to answer but he is shaking his head--has children, but it is useful to be able to hold a threat of punishment over children to ensure that they behave. This is exactly the same thing. There must be a power that can be held in the balance.
Lord Renton: My Lords, I also wish to support the amendment. It will be a strange situation if we do not have the words "to suspend or". The commission will not take any further steps in the investigation, but theoretically the investigation could be left open and in order to remove uncertainty we need the words "to suspend or". When legislating, an important point is to create certainty and not uncertainty. Therefore, I warmly support the amendment.
Baroness Blackstone: My Lords, my noble friend Lord Hunt did indeed reply in writing to the noble Lord, Lord Renton, and I shall ensure that the noble Baroness, Lady Blatch, receives a copy of the letter. From the noble Lord's support of the amendment, it seems that he may not entirely accept its contents.
In returning to debate this amendment, I wish to make clear from the start that the drafting of the clause allows a range of possible steps to be specified in a written agreement, including simple suspension--that is, allowing the revival of the formal investigation, but also allowing, say, the investigation to be brought irrevocably to an end. In seeking to specify one of the alternatives, this amendment neither adds to, nor subtracts from, the range of options available to the DRC. Therefore, perhaps I may advise the noble Lord, Lord Swinfen, that suspension is allowed under this clause. Clause 3(3) expressly gives the commission the power to suspend the conduct of a formal investigation at any time. I hope that that helps the noble Baroness, Lady Blatch, who also asked about that point.
Clause 5(5) allows the agreements to be varied or revoked even if suspension is not included in the terms of the agreement. It may help to illustrate this if I explain once more the background to the provision and how it is intended to operate. If the disability rights
If the statutory parts of the written agreement are breached--that is, those requirements that could be included in a non-discrimination notice--it is then open to the commission to take enforcement action as if a non-discrimination notice had been issued.
But enforcement action is not the only course of action available. It is open to the parties, in drawing up the terms of the agreement, to specify that a breach could also lead to the resumption of the investigation or agree this after the written agreement has been reached; or, indeed, for the DRC to decide to do this in order to find out if an agreement has been complied with.
Perhaps I may take up the point which the noble Baroness made forcefully in Committee, that court action should be seen as a last resort. We take it as axiomatic that the DRC will proceed on the basis of co-operation rather than confrontation. I very much agree that we want to avoid court action wherever we can. Enforcement should be a last resort to be used against those really blatant discriminators who do not follow the commission's lead in seeking an agreed solution.
Both the Equal Opportunities Commission and the Commission for Racial Equality have made use of written agreements informally and have found them a useful and flexible tool in the formal investigation process. I stress that the drafting of Clause 5 allows the disability rights commission to make arrangements to resume a formal investigation if it considers it appropriate to do so in the sort of instance to which the noble Lord, Lord Swinfen, referred. I hope that I have reassured the noble Baroness and that she will withdraw the amendment.
Baroness Blatch: My Lords, I sort of follow the logic of that answer, but if I accept the explanation which the noble Baroness has given, I have to ask the question: why do we have sub-paragraphs (i) and (ii) of subsection (2)(a)? What is the point of those provisions? If the Minister is telling me that the commission can conduct a formal investigation, suspend it or stop it and that all of those powers are covered by Clause 3, what is the point of specifying in subsection (2) that,
Page 3, line 34, at beginning insert ("to suspend or").
7 p.m.
"An agreement under this section is one by which--
(a) the Commission undertakes"--
the provisions do not state "suspend"--
"(i) not to take any further steps ..... and
(ii) if the Commission has made a finding that any of the unlawful acts in question were committed, not to take any steps or further steps with a view to the issue of a non-discrimination notice"?
11 Mar 1999 : Column 408
Baroness Blackstone: My Lords, I see what the noble Baroness is saying, but I think the commission has the flexibility to pursue either route--that is, either to suspend and then return to an action when there is no satisfactory resolution of it, as provided for in Clause 3(3), but also not to take any further steps in the investigation where that is appropriate. If I am wrong about that, I shall write to the noble Baroness to clarify the point further.
Baroness Blatch: My Lords, I shall be grateful if the noble Baroness does that because "not to take any further steps" means stopping the investigation. I am in some confusion now about the relationship between Clause 3(3), which simply states that the commission may at any time decide to stop or to suspend the conduct of a formal investigation, and what seems to be the convoluted discussion about the provisions of sub-paragraphs (i) and (ii) of Clause 5(2)(a). I shall be grateful if the noble Baroness can write to me between now and the next stage. I beg leave to withdraw Amendment No. 14.
Amendment, by leave, withdrawn.
Clause 6 [Assistance in relation to proceedings]:
[Amendments Nos. 15 to 17 not moved.]
Lord Swinfen moved Amendment No. 18:
The noble Lord said My Lords, in moving this amendment, I wish to speak also to my Amendment No. 19. As the House knows, Amendment No. 20, which stands in the name of the noble Baroness, Lady Blackstone, is grouped with my amendments.
I have tabled my two amendments on behalf of the Law Society of Scotland. At this stage, they are probing amendments, but I may need to return to them at Third Reading. Amendment No. 18 would have the effect of ensuring that the disability rights commission is able to arrange for the same type of legal advice and assistance that a litigant in receipt of legal aid would obtain. It would ensure consistency of application and approach between the DRC measure and legal aid under the Legal Aid Act 1988 and the Legal Aid (Scotland) Act 1986. That is because both those Acts provide that eligible applicants are entitled to legal advice and assistance, and it is appropriate that those obtaining assistance from the DRC have the same level of advice and assistance as those who may be legally aided in the same or a related issue.
Amendment No. 19 seeks to clarify before which bodies the DRC will be able to arrange for representation. The terms of Clause 6(3)(b) allow the commission to arrange for legal or other representation. The amendment would limit such representation to that before a court or tribunal. The DRC's resources will be limited. Accordingly, they should be directed where they have the greatest effect. I beg to move.
Page 4, line 44, at end insert ("and assistance").
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