Equality Bill [Lords]

I thank my hon. Friend for tabling his amendments. As hon. Members might be aware, the other place had an extensive debate on the issues raised, but I am pleased to make the case here. On amendment No. 21, we have said consistently throughout consideration of this Bill that it is not our intention that the new commission will provide legal assistance for every meritorious case. It will simply not have the resources to do so, any more than the current commissions can support every case, as they do not have the necessary resources that that would entail. We have said consistently that it is our intention that the new commission will use its enforcement powers in an effective and strategic way. That applies equally to its power to assist individuals in bringing proceedings before a court or tribunal. We cannot see the case for placing an express obligation on the commission to consider every application. In practice, it will need to consider all applications if it is to identify which, if any, it wishes to support. As a public body, the commission has an implicit obligation not to act unreasonably, and could be challenged if it ignored applications that it received. Amendment No. 22 seeks to add casework to the list of legal assistance that the commission can provide alongside what is already listed—legal advice, legal representation, facilities for the settlement of a dispute and any other form of assistance. Our view is that that amendment is also unnecessary, as the commission for equality and human rights will be able to provide casework advice under the powers contained in clauses 13 and 29. Clause 13 will allow the commission to provide general advice and guidance on matters that are not the subject of legal proceedings. Where legal proceedings are envisaged, casework advice is included within the reference to legal advice and representation in clause 29. Specifying casework separately would cast doubt on whether the references to advice and guidance and legal advice and representation cover casework and imply that it is something different, which it is not. Amendment No. 44 would permit the commission to meet the costs of the other party in the event that an individual that it was supporting lost the case before a court or tribunal. At this stage, I should make it clear that the commission may meet any costs awarded by a court or tribunal against an individual that it was supporting. This is the case with the current commissions and will be so for the new commission. However, the amendment seeks to go further than securing that position. It would create a power for the new commission to meet the costs of the other party even where no costs had been awarded by the court or tribunal. Hon. Members will doubtless be aware of the concern expressed in the other place about small firms and charities being treated unfairly or oppressively when the commission uses its enforcement powers. There was extensive debate in the other place on that matter and I am grateful for the opportunity to set out our thinking on how the new commission will engage. First, we do not have to fear unreasonable or oppressive action by the commission. The commission will work primarily through promoting good practice, helping bodies comply with the law and fostering constructive links with a wide range of bodies, including small businesses and charities. The commission will need to be sensitive to the concerns of its stakeholders. If it fails to do so, it will lose authority and public support. It will, of course, need to consult on its strategic plan, which will include its legal and regulatory strategy. I hope that that alone should provide reassurance against the commission taking an arbitrary or unreasonable approach. However, I recognise that it is possible that a small organisation could find itself defending an action brought with the commission’s support, but there are checks and balances that ensure that a body in this situation is not disadvantaged. Most legal proceedings on discrimination are brought in employment tribunals. Employment tribunals are specifically designed to have straightforward procedures that make formal representation unnecessary. I am not persuaded that we should give the commission the power to meet the costs of the other side in such circumstances. The commission will use its power to support individual litigants in proceedings that it believes will have a strategic effect. It would be inappropriate for the commission to then meet the costs of the other party. I do recognise the concerns but there are sufficient safeguards in the Bill to prevent this situation from occurring.