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Lord Lester of Herne Hill: My Lords, would I not be right in saying that if a worker brought a claim of discrimination and behaved unreasonably, he would not be able to succeed in that claim in any event? Does it not apply to any assertion of rights that the claimant must demonstrate that he is not abusing his rights? Therefore, the notion of not abusing your rights is also built into the notion of rights and duties
Lord Falconer of Thoroton: My Lords, indeed, and that is reflected in specific provisions. I do not want to enunciate a general principle, but, subject to the terms of the statute, that is right. Therefore, my response to the noble Lord, Lord De Mauley, is that it is an important point with which I agree, as defined by the noble Baroness, Lady Warnock, and the noble Lord, Lord Lester. With respect, I ask him to consider whether it is wrong to try to deal with the matter in legislation, but to recognise that we both agree on the broad approach that should be taken to rights.
Lord De Mauley: My Lords, I thank the noble Lord, Lord Lester, and the noble Baroness, Lady Warnock,
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for their contributions. I also thank the noble and learned Lord the Lord Chancellor for his comments, for which I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 40:
( ) conduct its affairs in the public interest and with an appropriate degree of independence"
The noble Baroness said: My Lords, this simple and short amendment requires the CEHR to conduct its affairs in the public interest and with an appropriate degree of independence. I introduced an identical amendment in Committee and I withdrew it in order to consider the Minister's reply. That I have carefully done, but despite the assurances that the Minister gave me in, I accept, entirely good faith, I still feel that the concept ought to be spelt out in black and white not only for the benefit of the public but for the guidance of the CEHR and any tribunals which might have to adjudicate on any matter coming from it.
The amendment was inspired by the identical provision in a Private Member's equality Bill introduced by the noble Lord, Lord Lester, in 2003. After expressing his surprise at being reminded of his authorship of this highly commendable concept, the noble Lord told your Lordships that he certainly agreed with the substance of what I had said. Later in the same brief debate, he exacted an acknowledgement from the Minister that if the commission were not to act in the public interest or abused its powers, the courts could intervene.
On the abuse of powers, yes, clearly the courts could intervene, would intervene and no doubt should intervene. But deciding what is in the public interest is a subjective political opinion for angels. I suppose that it is probably not an area which judges would want to rush into—and nor should they. Judges are there to interpret the law and not to make or even to define public interest or public policy. The responsibility of taking the public interest into consideration in deciding cases before it belongs to the powerful organisation that the Bill is creating. It is likewise essential that it should act entirely independent of the Government and not be swayed by populist announcements from the soapbox by Ministers of whatever government happen to be in power at that time.
When the Bill originally reached your Lordships' House, I was concerned with the degree of control being sought by the Secretary of State over the activities of the commission; by the power of the Secretary of State to direct it to do this or that; and by the lack of any requirement to account, via the Secretary of State, over its future plans. I am grateful to the Minister for having gone a long way to meeting those concerns in a number of important areas—not all of them, but a satisfactory number, which again underlines the importance of this Chamber.
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Do the Government think that there would be anything wrong in the commission basing its actions on what it perceives to be the public interest? Do they believe there is anything wrong with this quasi-judicial organisation acting with what I and the noble Lord, Lord Lester, very moderately requested: namely, an appropriate degree of independence? Will the Minister tell us yes or no? If, as I am sure, the answer is no, there is nothing wrong with either statement. The noble and learned Lord the Lord Chancellor would say he did not think there was anything wrong with the statement—at least that is what I think. There is no reason why those principles could not be spelt out in crystal-clear words. This would certainly put the matter beyond doubt in the minds of the commission. I beg to move.
Lord Lester of Herne Hill: My Lords, it is always amusing to have one's words quoted back at one, and I am grateful to the noble Baroness, Lady Miller of Hendon, for recalling them. The second limb of this amendment is met entirely by the Government's amendments, because they have now secured what is called an appropriate degree of independence in their amendments to the Bill.
So far as the first words are concerned, I now realise that the disadvantage of my own words is that they do the very thing that the noble Baroness rightly deprecates, which is to involve the courts in unnecessary litigation about what is or is not the public interest. That would not be desirable. The public interest is defined in the Bill we are debating as the equality and human rights provisions that have to be interpreted and applied by the commission and the courts according to law, and if the commission were to frustrate the statutory objects or act contrary to law, it would be subject to judicial review. Neither the first nor second limb is necessary now.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness, Lady Miller, for raising these important issues. The answer is yes, of course the commission should operate responsibly and in the public interest; yes, of course it should act with the appropriate degree of independence. Again, though, echoing what the noble Lord, Lord Lester, has said, the framework we have established—and strengthened with a package of amendments today—will ensure this.
As a non-departmental public body, the commission will be required to operate within a well-established accountability framework. Guidance issued by the Cabinet Office is clear on this point. While NDPBs operate independently of Government, Ministers remain accountable to Parliament for public money spent by that body. The chief executive of the commission, as is the practice with NDPBs, is the accounting officer, and he or she will be required to prepare a statement of account each year, and provide this to the Comptroller and Auditor-General. In this way the commission will be under the scrutiny of the National Audit Office and the parliamentary Public Accounts Committee. In addition, it will be required to
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draw up and publish a strategic plan setting out its proposed activities clearly. This will be subject to consultation, and will be informed by the views of stakeholders.
From the amendments agreed to earlier today on the matters relating to the independence of the commission, we will now require the commission to provide a copy of its plan to the Secretary of State in order to lay before Parliament. We have listened carefully to the committee debates in this place about the new commission's independence, and I believe we have responded positively to these concerns. We have taken measures to strengthen many aspects of the commission, such as its appointments and funding—for example, we have dealt with the direction-making powers of the Secretary of State—so that we improve the commitment to independence.
I am sure that the noble Lord, Lord Lester of Herne Hill, is suitably flattered—deservedly so—by the plagiarism done by the noble Baroness, Lady Miller of Hendon. As he knows, the amendment draws on the provisions of his Private Member's Bill of 2003. I hope, therefore, that the noble Baroness will be completely satisfied, now that the noble Lord, Lord Lester of Herne Hill, is satisfied with the provisions that have been made.
I sympathise completely with the intention behind the noble Baroness's amendment. I hope that I have made it clear that it is not in any way to frustrate her purpose but because we have already delivered her purpose that we resist the amendments. I hope that, in the light of what I have said, the noble Baroness will feel reassured and will withdraw her amendment with a spring in her step.
Baroness Miller of Hendon: My Lords, with a spring in my step? I can do more than thank the noble and learned Lord the Lord Chancellor and, if I may, the noble Lord, Lord Lester of Herne Hill, for his helpful comments. With the same spring in my step, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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