Equality Bill [HL]

moved Amendment No. 141:"Page 19, line 4, leave out ““are without prejudice to”” and insert ““disapply””" The noble Lord said: Clause 32(1) makes it clear that the commission will have the capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the commission that the proceedings are relevant. It codifies the existing case law, which has enabled the EOC, the CRE and the Northern Ireland Human Rights Commission to seek judicial review of legislation, rules or administrative practices and procedures where they are contrary to the human right to equal treatment without discrimination, as expressed in UK and European legislation. The power of the equality commissions to seek judicial review has proved to be valuable, cost-effective and proportionate. It has enabled them to obtain from the specialised administrative court a declaration on the law and its application, without the need to support legal proceedings by individuals claiming to be victims of breaches of the sex discrimination or race relations Acts. I will give just a couple of examples where I was privileged to act for the EOC in judicial review proceedings. The first example is in the field of education. Birmingham City Council operated a system in which some of the secondary schools were single sex grammar schools. There were more places for boys than for girls. Birmingham City Council denied that this was contrary to the Sex Discrimination Act, so the girls had less access to that form of education than boys in Birmingham. The Law Lords ruled otherwise and more places for girls were duly provided. This was achieved without the need for any individual girl or her parents to bring county court proceedings. Exactly the same happened in Northern Ireland where Mr Justice Hutton—as he then was—gave landmark judgments that changed that practice in Northern Ireland. Exactly the same also happened in Hong Kong where the EOC for Hong Kong succeeded in a judicial review of a secondary school selection process which discriminated against girls. To give a second example—because examples help—a policy involving sex discrimination against pregnant women in the Armed Forces was eliminated as a result of judicial review proceedings brought by the EOC. In a further judicial review the EOC obtained a declaration that the exclusion of part-time workers from employment benefits was contrary to European community law. Clause 32(1) makes it clear that the commission will be able to use this beneficial procedure in cases involving equality and non-discrimination, but Clause   32(3)(c) seeks to prevent the commission from seeking judicial review of legislation rules or administrative practices which are incompatible with the Human Rights Act. This is because Section 7 of the Human Rights Act enables only individual victims to bring proceedings alleging breaches of the duty imposed on public authorities to act in a way compatible with the European Convention on Human Rights. The commission will have no power to assist individuals in bringing legal proceedings under Section 7 of the Human Rights Act because legal assistance is restricted by Clause 30 to proceedings relating to the equality enactments. Nor will the commission have the power to issue compliance notices for breaches of public sector duties under the Human Rights Act because Clause 34 is restricted to the duties imposed by the equality enactments. There is a lack of symmetry in the Bill as it stands. The commission may be the subject of judicial review proceedings if it fails to discharge its public functions correctly. Yet the commission will be prevented from bringing judicial review proceedings against a governmental or other public authority which acts in a way that is not compatible with the convention rights. That one-sided fetter on the commission’s powers is not in accordance with the broad mandate envisaged in the Paris Principles, and is not in the public interest. The Joint Committee on Human Rights agrees that the commission should not become the engine of human rights litigation beyond the equality field. That was a large pill to swallow but we swallowed it. However, the committee has made the moderate and practical recommendation that, to avoid becoming entirely toothless in tackling human rights issues, the commission should at least be able to seek judicial review in appropriate cases. That is what my amendment is designed to achieve. It would not undermine the victim test in Section 7 of the Human Rights Act because only victims would be able to seek personal relief under Section 7. The administrative court would ensure that the commission did not abuse the judicial review procedure, and the relief granted would be at the court’s discretion and would usually be declaratory. It would enable difficult issues of legal interpretation and application to be resolved speedily by an authoritative and specialist court, usually where the underlying facts were not in dispute, as in the cases that I mentioned. It would avoid the need for individual victims to be found and funded—funded not by the commission, incidentally—to bring individual cases, with the commission unable to assist except by seeking to intervene as a third party. That process would be likely to increase legal costs and the complexity of the litigation, which would become triangular. The commission would have the necessary expertise and authority to bring such a case, with the benefit of its knowledge and experience in monitoring the law, its progress in achieving its aims, and the fruits of its statutory inquiries. The effect of the amendment would be much more modest than is the case in other countries such as the Republic of Ireland. There, under the Human Rights Commission Act 2000, which implemented the Good Friday agreement south of the Border, the Irish Human Rights Commission has been given much more extensive powers in addition to those given to the separate Equality Commission. The Irish Human Rights Commission may not only provide assistance in individual legal proceedings involving law or practice relating to human rights, but may also institute human rights proceedings of a wide variety in its own right. I am grateful to the noble and learned Lord the Lord Chancellor for his willingness to meet me to discuss these important issues. I hope that the Minister will be able to indicate that the Government are sympathetic to the object of the amendment. I beg to move.