Equality Bill [HL]

moved Amendment No. 74A:"Before Clause 8, insert the following new clause—"    ““INDEPENDENCE OF COMMISSION (1)   It shall be the duty of each Minister of the Crown to uphold the independence of the Commission in the discharge of its functions. (2)   Subsection (1) does not impose any duty which would be within the legislative competence of the Scottish Parliament to impose.”” The noble Lord said: During the debate on the first day in Committee last Wednesday, concern was expressed by many noble Lords about the need to secure the independence of the new equality and human rights commission. That was expressed not only by my noble friend and myself, but also by the noble Baronesses, Lady Miller of Hendon and Lady Howe of   Idlicote, the noble Lord, Lord Dholakia, the noble   Baroness, Lady Lockwood, the noble Lord, Lord Ouseley, the noble Baroness, Lady Carnegy of Lour, and, I expect, others as well. Those views accord with the powerful opinion expressed by the Joint Committee on Human Rights. In her extremely helpful remarks at various points, the Minister said—I hope she will not mind my quoting her but the words are worthy of recalling:"““My ambition for the commission is that it will have the confidence of the population of this country and be able to feel that it has a sense of independence from government. That is what I am searching for in discussing with noble Lords the proposals on the table””." She added:"““I am trying to achieve a well defined relationship with government and with Ministers, with well defined duties and well defined powers to build confidence in all directions””.—[Official Report, 6/7/05; col. 643.]" She then said:"““So, the door is not closed to further discussion by any means on how we make sure that the commission operates in an independent and appropriate manner. My argument is that I have not yet seen a proposal that, in a sense, moves us further forward towards how that   makes the greatest sense for the commission””””.—[Official Report, 6/7/05; col. 644.]" Stimulated by those helpful and positive remarks, I racked my brains to find a way to achieve greater independence for the commission without changing the basic structure that the Government have in mind.   I took a leaf out of the Government’s own Constitutional Reform Bill—now the Act—where it sought to promote the independence of the judiciary against any improper government interference. Amendment No. 74A is an adaptation of what is already in the Constitutional Reform Act 2005. I do not suggest that the new commission is a court. It does of course have quasi-judicial powers—not only the power to bring proceedings in its own name as a law enforcement body, but the power to issue what are at the moment called non-discrimination notices, which unless appealed against, become final and binding. In that sense, the commission is a type of tribunal in that area. My amendment would impose a duty on each Minister of the Crown to uphold the independence of the commission in the discharge of its functions. I have been careful, as is the Constitutional Reform Act, to deal with Scottish devolution by making it clear that this provision does not impose any duty that would be within the legislative competence of the Scottish Parliament. What would be the practical effect of this amendment? I do not suppose that it would lead to litigation against Ministers for breach of this duty but it would serve the extremely important purpose that the independence of the commission would have been seen by Parliament and expressed by Parliament to be a vital value to be observed by Ministers in their relationship with the commission. In some future government, if a Minister were to seek in any way to sap the independence of the commission, the commission would be able to point to this provision and say, ““What you’re doing is contrary to the will of Parliament.”” It could therefore be used defensively. In a really gross case, if there were improper ministerial interference with the commission—by some future government, I emphasise: I am not suggesting that it would arise now but we are legislating for the future and not just the present—this would be an important provision to which the courts would have regard if there were any judicial review challenge to the way in which Ministers had abused their powers. If this amendment were to find favour with the Government—I do not expect an answer saying ““snap”” today, because the amendment was tabled only at the end of last week and will require consultation—it would have the added advantage that it would be less necessary to put in a lot of the machinery that we were debating last week in order to secure independence. Therefore, the provision has the merits of simplicity; anyone can understand it. I do not see any disadvantage from the Government’s point of view, since through the Minister and others, they have made it quite clear that they intend to ensure the independence of the commission, subject always to their power to give directions. We will debate that matter later when I hope to persuade the Government that they do not need such bossy or intrusive powers. I beg to move.