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Equality Bill [HL]

moved Amendment No. 101:"After Clause 34, insert the following new clause—"    ““LEGAL ASSISTANCE FOR PERSONS OR ORGANISATIONS BEING INVESTIGATED ETC. BY THE COMMISSION (1)   This section applies where the Commission is— (a)   conducting an investigation under section 22, or (b)   issuing an unlawful act notice under section 23, or (c)   making an application to a court under section 24(6), or (d)   making an application to a court under section 26, or (e)   bringing proceedings under section 27, or (f)   giving legal assistance to an individual under section 30, or (g)   bringing an application for judicial review under section 32, or (h)   issuing a compliance notice, or making an application to a court, under section 34. (2)   In a case to which this section applies, where the defendant in a court or tribunal case or the subject of the notice or investigation is— (a)   an individual, or (b)   a charity, or (c)   an organisation of the type mentioned in section 59 of this Act, the individual, charity or organisation shall be granted legal assistance paid for out of central funds to enable them to respond to the case, the notice or the investigation. (3)   The Lord Chancellor shall make regulations providing for payment out of central funds for the provision of such legal assistance. (4)   The sections listed in subsection (1) of this section shall not come into force until the regulations mentioned in subsection (3) have been laid before and approved by resolution of each House of Parliament.”” The noble Baroness said: My Lords, the problem here relates to the absence of checks and balances against the awesome power of the commission. I believe that the Equality Bill introduced in January 2003 by the noble Lord, Lord Lester, contained more checks and balances on the commission than this one. What restraint is there when this powerful commission pursues, for example, a small charity with limited resources? On 11 July at Hansard Column 949, my noble friend Lady Miller drew attention to the fact that the enormous financial and legal resources of the commission could be ranged on one side of a legal dispute leaving a defendant who had limited financial resources at a considerable disadvantage. My noble friend pointed out that that would create enormous inequality. I share those concerns. In particular, I am worried about how that will affect organisations that promote religion. For example, there are organisations such as Alcoholics Anonymous, which as part of its activities—the eight point plan—pray to God for help. If an organisation of that kind wished to recruit a member of staff and did not want to employ an atheist, an atheist could make an allegation that the organisation had breached the Employment Equality (Religion or Belief) Regulations 2003. The commission could decide to back the legal action as a test case to establish the limits of the defences of religion or belief organisations found in the regulations. The atheist complainant being backed by the commission will have access to the best legal advice and enormous financial and personnel resources. The defending organisation, however, would almost certainly have to issue an appeal for funds to its band of supporters to pay for legal advice. That would surely be unfair. My noble friend Lady Miller moved an amendment in Committee to remedy the situation by giving the commission discretion to provide legal assistance to those on the receiving end of the enforcement proceedings. That did not find favour with the Government, who did not want the commission,"““trying to face in both directions at the same time””.—[Official Report, 11/7/05; col. 953.]" My amendment is not open to that charge. It does not invite the commission to fund the defence; instead, it requires the Lord Chancellor to issue regulations creating a mechanism for payment out of central funds. It is essential for two reasons that we take that step: first, to prevent the commission from steamrollering smaller organisations to ensure that its view of the law becomes enshrined as precedent and, secondly, for the sake of justice. Neil Addison, a barrister, has provided advice to the Christian Institute on this matter, and says:"““Under clause 30 the Commission is allowed to give financial assistance (in essence a form of legal aid) to persons bringing legal proceedings either for Discrimination or under the Human Rights Act. If the assisted person wins their case then the Commission can recover these legal costs (clause 31). However there is no provision in the Act, or in existing legal aid legislation, for individuals or organisations to be given legal aid if they are being investigated by the Commission or are being sued with the backing of the Commission. Nor does there appear to be any provision for a person or an organisation to recover their legal costs in defending themselves from an investigation or in fighting a legal claim backed by the Commission. I consider that this omission could well be in breach of the Human Rights Act””." Mr Addison goes on to say:"““In the case of Steel and Morris v UK . . . (the McLibel case) the European Court of Human Rights accepted that legal aid should be granted in Civil Cases where the resources between the parties were significantly different and where issues involving Convention Rights are involved.””" I believe that there is clearly a case to answer. This amendment caters not only for defence against commission-backed legal action, but also for defence against other enforcement actions which it may take. In addition, it would benefit individuals as well as charities. It particularly focuses on the religion or belief organisations, which are covered in Clause 59. This would entitle Alcoholics Anonymous, in my example, to apply for legal assistance to ensure it responds properly and fully to the case backed by the commission. My amendment does not say anything about means-testing; it does not establish the hurdles which must be passed before legal support can be obtained. That is for the noble and learned Lord the Lord Chancellor. However, what my amendment does establish is the principle that, in order to avoid great inequality between the parties as a result of the involvement of the commission, aid can be given. When we discussed this issue in Committee, it was suggested that there was no need for such a provision because the commission would never, ever back a legal action that was not thoroughly worthy. Sadly, in the legal world, we know of many miscarriages of justice where mistakes have been made. We are all human. Are we to believe that unlike the police and the CPS, the commission is to be staffed by angels who will never make mistakes, and never allow partiality to affect their judgment? It was also asserted that none of the existing commissions has ever backed an inappropriate legal action. I am afraid that that is not strictly true. I know of at least one case to support my assertion—the case of Bill Parry v The Vine Christian Centre, which I raised repeatedly during our long discussions on the passage of the Gender Recognition Bill. The importance of that case is that the Equal Opportunities Commission supported the protagonist. The case was thrown out by the court at the first opportunity. It was recognised as a bad case, yet the commission supported it. I cannot believe that that is the only example. Of course, I do not say that all cases supported by the commission would be like that—in fact, there would probably be very few—but we must have some mechanism for ensuring that unworthy cases do not succeed simply because of the inequality of resources between the parties. If Mr Addison is right, failure to do so may even result in a breach of the European Convention on Human Rights. I beg to move.