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Equality Bill [HL]

My Lords, I am grateful to the noble Baroness, Lady O’Cathain, for raising this matter. This is an area about which the noble Baronesses, Lady O’Cathain and Lady Miller of Hendon, are genuinely concerned. We need to have a further conversation about this matter as I was unable to have the length of conversation with the noble Baroness that I had planned. That was entirely my fault. The noble Lord, Lord Lester, gave some of the answers that I would give about opportunities. However, I want to make two or three general points as a precursor to the conversation that we need to have. First, I believe we all agree that the primary approach of the commission is to promote and support good practice. Therefore, we are talking about a situation that will arise only rarely when it resorts to its regulatory powers—and when attempts to secure improvement through providing advice and guidance have failed. It will support cases brought by individuals only in a very few cases. Therefore, I do not believe that in general terms we have to fear arbitrary, unreasonable or disproportionate action. The commission’s powers are modelled on those of the existing commissions, who have used them sparingly and strategically. We expect the new commission to do no less. I understand the concerns about the impact on a faith or other body that regulatory action by the commission might bring. While it is possible, of course, that individuals, charities and religious or belief organisations could become subject to discrimination proceedings, we need to remember, as the noble Lord, Lord Lester, said, that the great majority of cases are brought before employment tribunals where the procedures are simple and straightforward so that formal representation is not required. Procedures have recently been improved further. For this reason legal aid is not available in employment tribunals in England and Wales for either side. Should an individual faith leader face discrimination proceedings in the county court, he or she would be eligible to apply for legal aid, subject to the standard means and merits test that exists for accessing some public support. It is, of course, possible for faith bodies, who might face proceedings as employers, to take out insurance against the costs of legal representation and damages against them in the courts. The commission will have the power to compel evidence in an investigation, and I recognise that this could be onerous on an individual or small organisation. However, there is a safeguard to check the powers of the commission and to ensure that they are not used irresponsibly. Schedule 2 enables that a person served a notice to provide evidence may apply to a court to have the notice cancelled on the grounds that it is unnecessary or unreasonable. The Bill provides for representations to be made and for the commission to consider representations made in relation to an inquiry, investigation or assessment. No party is required to make such representations, nor need they be made by a lawyer. A person subject to an unlawful act notice may or may not have a requirement attached for an action plan. Such a person would be entitled to apply to a court to have the notice cancelled, but is not required to do so. A person applying to a court to have a notice cancelled would be entitled to request an award for costs if they won the case. If the commission were to apply to a court for an injunction under Clauses 26 or 27 or bring judicial review proceedings, it would be incumbent on it to make the case. The respondent would, however, be entitled to make their case to the court and although they could represent themselves, it is reasonable to assume that they would instruct legal representatives. However, were they to be fighting an unsuccessful application by the commission for an injunction, as the noble Lord, Lord Lester, said, there is a likelihood of the court awarding costs. I have deliberately tried to set out those points very briefly but in summary it is not the intention in setting up the commission that it will use its powers to pick on individuals, charities, religious or belief organisations or, indeed, small businesses. As a public body the commission is obliged to act reasonably and can be challenged in the courts if it does not. I believe that public support for the commission would soon disappear if it was considered to behave oppressively or unfairly. As I said, its enforcement powers are closely modelled on those of the existing commissions. There are procedures in place in the courts and employment tribunals to ensure that completely unfounded or vexatious cases are thrown out. Tribunals can award costs against a litigant in some circumstances. In county courts or the High Court costs are frequently awarded to the subject of unsuccessful proceedings. The Government could not support setting up a new source of legal aid funding for the need that we are discussing, not least because inevitably it would be given at the expense of other needs. I doubt that there would be widespread agreement that that would be justified. However, I undertake to continue discussing the matter. The noble Baroness, Lady O’Cathain, deserves the attention of officials who can explain in greater detail precisely how the provision would work. She can then make a decision whether to pursue the matter further.