“Honour-related” Violence
Lord Lester of Herne Hill Excerpts(12 years, 3 months ago)
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Lord Henley
My Lords, before I came here, I wrote down honour-based violence and put inverted commas around “honour”. The noble Lord has made the point exactly for me. It is a strange use of the expression “honour”, but it is the one we have at the moment. Possibly, as the noble Lord says, we ought to find a better expression.
Lord Lester of Herne Hill
My Lords, my interest in this comes from originating the Forced Marriage (Civil Protection) Act. We have plenty of criminal law already, and we should be careful before we add any more crimes to the statute book since that could lead to people not coming forward to report these evil and barbaric practices, but does the Minister agree that there might be a case for strengthening it where there are breaches of the forced marriage protection orders?
Lord Henley
My Lords, I am aware of my noble friend’s interests in these matters. He will also be aware of my right honourable friend the Prime Minister’s desire to make the breach of a forced marriage protection order a criminal offence. I also understand what my noble friend says about the dangers of adding crimes to the statute book. We should bear that in mind. He will be aware that a consultation is in progress on this subject, which finishes, I think, some time in March. At the end of that period, we will consider the appropriate options.
Protection of Freedoms Bill
Lord Lester of Herne Hill Excerpts(12 years, 4 months ago)
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Lord Lester of Herne Hill
My Lords, I am a member of the Joint Committee on Human Rights. We reported on this Bill last October. I do not know to what extent Members of the House have had a chance to read that report. I do not think that it has been referred to in previous debates on this subject, but we dealt with this issue in chapter five of the report. The noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Scott of Foscote, have reminded us of my next point. It is ancient common law that there should be effective protection of our right against arbitrary search and seizure. For me it goes back at least to Entick v Carrington in the days of George III and the famous statement of principle by Lord Camden, which was adopted last week by the American Supreme Court in interpreting the Fourth Amendment to its constitution. Everyone knows that the sanctity of the home and the right to be protected against arbitrary search and seizure is enshrined in our common law. It is also enshrined in our constitutional law through the Human Rights Act and Article 8 of the European Convention on Human Rights. Article 8 guarantees the fundamental right to be protected in respect of one’s private life, one’s home and one’s correspondence. That has been repeatedly interpreted by the European Court of Human Rights as giving effective safeguards against abuse of the powers of search and seizure. Section 3 of the Human Rights Act requires all statutes, including this one, to be read and given effect, if possible, so as to comply with that convention right. Therefore, we are not legislating in a vacuum.
The Human Rights Act ensures that anything in this Bill which becomes law is subject to the right of protection in Article 8 of the convention. In addition, Section 6 of the Human Rights Act requires every public authority—this would apply to a police officer, a trading standards officer or anyone else exercising public powers—to use those powers in a way that is compatible with the convention right in Article 8. Therefore, the fears that have been raised in this debate should be understood in the context of the safeguards that have been put in place across parties by the enactment of the Human Rights Act.
The Joint Committee on Human Rights drew attention to that in its report. Paragraph 116 states:
“We welcome the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards. The decision to review all existing powers of entry is a welcome one … We consider that a review of existing powers of entry offers a clear opportunity to identify where powers of entry continue to be justified, proportionate and necessary”.
We also consider that it would provide greater legal certainty. We said that,
“at a minimum, each power of entry should be strictly defined, including clear limits on the circumstances when the power may be exercised and the identity of the person or body exercising the power”.
That, of course, would be a way of giving more concrete support to what is already in the Human Rights Act and the convention. I should be grateful if the Minister were able, even though I have not given him notice, to deal with this in his reply. We regretted,
“that the review of existing powers was not completed”,
before this Bill was introduced, and in paragraph 118, we said:
“We are concerned that since the review has not yet been completed, the legislation proposed is overly broad and creates a risk that delegated legislation may be used in future”,
in ways that are basically against the public interest.
It would be helpful to know, if possible, the Government’s response to that review. Nothing that I have said leads me to support the amendments tabled by the noble Lord, Lord Marlesford, even though I understand his reasons, which I fully respect, for tabling them. I do not think that they are very well drafted or necessary. I think that the safeguards referred to are sufficient but I would be grateful to know more about the review that we asked for as long ago as last October. If the House were asked to divide on this, I would have to vote against the amendment.
Lord Neill of Bladen
My Lords, I would have wanted to vote for the noble Lord’s first amendment, but I can see that there are difficulties and that maybe more time for thought is required. It is perfectly true, as the noble Lord, Lord Lester, said, that a report has been produced that emphasises the sovereignty, as it were, of the human rights convention, which intrudes—I mean that in a good sense—into earlier legislation and the rights and the protection that are not visible there.
My concern is that the ordinary man or woman in the street does not understand the scope of the Human Rights Act and would be outraged to hear that there are 1,200 instances when officials can enter your house—your home—and certainly your business and would wonder how that could have arisen over the years. In the absence of a ministerial explanation, I would be inclined to infer that it would become a habit that if you wanted a power that might be useful one of these days for some of your officials, you stick in a power of entry. Parliament is bereft of any power either because that power is in a statutory instrument and we do not amend statutory instruments, or it is in a bit of primary legislation that goes through with that clause unattacked.
Something clearly has to happen as a result of the amendment moved by the noble Lord, Lord Marlesford, the research by the noble Lord, Lord Selsdon, which has produced the figure of 1,200, and 500 separate pieces of legislation, as I understand it, from the noble and learned Lord, Lord Scott of Foscote. My present state of mind is that I am very anxious to hear what the Minister has to say and what amelioration of the situation can be produced. It is not satisfactory at the moment and some quite sweeping amendments will be required, no doubt making due reference to the points raised by the noble Lord, Lord Lester.
Lord Lester of Herne Hill
Is the noble Baroness not satisfied that the Human Rights Act, which her Government introduced, ensures that all these powers have to be prescribed by law in a legally certain way and that they must be exercised in a proportionate way in order to protect our rights of personal privacy, home and correspondence? Why is that not good enough as a general standard which applies to future legislation as well as to past legislation?
Baroness Royall of Blaisdon
My Lords, the Human Rights Act is an extremely important Act which provides the safeguards that the noble Lord suggests. However, I think that when some of these powers are being exercised, they are not always exercised according to the standards that should be imposed by the Human Rights Act. I also know that the very fact that there are these countless powers gives a lot of people concern that their very rights are being infringed. We have to look at all these things in the round.
Lord Marlesford
My Lords, I thank everyone who has taken part in this interesting and useful debate. I was drawn to the clarity with which the legal mind of the noble and learned Lord, Lord Scott, approached the issue; there is much attraction in it. However, the concessions I have made, which have been referred to, were intended to meet some of the points raised.
The noble Lord, Lord Borrie, was able to produce many arguments about why, in some way or other, the proposal had not gone far enough—even in the case of trading standards officers, who have expressed complete satisfaction with what I have done.
I listened with great interest to my noble friend Lady Eaton, who gave a full account of a case in Yorkshire. I am sure it was an important, useful and maybe typical case, but I found myself thinking that had the people involved needed to get a warrant they would have been able to execute the case every bit as effectively as they did without one because the timescale she described would have made it perfectly possible.
The noble Lord, Lord Neill of Bladen, made a good point. The tendency at the moment, which has grown up over the years, is that if you want an extra power of entry you just stick it in. That has been the culture which, in a sense, we are trying to counter.
The noble Lord, Lord Lester, produced, as he so often does, the human rights legislation as being the solution to it all. I would remind him—well, not remind him because he knows it as well as I do, as do most of your Lordships—that human rights legislation, although desirable in theory, is about the slowest and most expensive route for correcting wrongs as can be imagined. The European Court of Human Rights is absolutely bunged full and is years and years behind. I would strongly recommend that we find a better route for anything which depended on using it. I see that the noble Lord is about to make a further defence of the Human Rights Act. I give way to him.
Lord Lester of Herne Hill
I was not going to do that; I was going to point out that the remedy is in our courts, not in Strasbourg, to get an injunction or compensation under the Human Rights Act.
Lord Marlesford
Of course, if people do not like what our courts say, they go to the European Court of Human Rights. Most astonishingly trivial cases have been put to it. My right honourable friend the Prime Minister had some phrase for the multitude of cases going to the European Court of Human Rights. With the greatest respect and affection for my noble friend Lord Lester, I suggest that we do not use the European Court of Human Rights as a solution to these particular problems.
The Minister produced the same arguments as last time. He expressed a degree of sympathy but he did not answer in any detail the concerns of my noble friends over the progress of this review. All this debate has done, in a sense, is illustrate the way in which people will always find some ingenious argument or other to support a position. I remember my noble friend Lord Hurd, when he was a junior diplomat in Beijing—I think it was his first posting—writing a letter, which I was shown, to a certain noble Lord about a visit to Beijing of a senior politician who he described as being inclined to take up an impossible position and then cast around for clever ways of supporting it. The noble Lord, Lord Hurd, saw this as the sure mark of a second-class mind. I thought that was pretty damning but there is a danger of trying to find arguments against this. I do not feel that any substantial argument has been put forward.
The noble Earl, Lord Erroll, got it right when he said that if we do not pass this now, nothing will happen. We have had years of nothing happening. I was grateful for the support of the Leader of the Opposition when she said that we must at least get the Government to come back at Third Reading with something. Otherwise, this whole issue will clearly go to sleep again. Over the past few years we have had a surfeit of ill prepared legislation. It is our duty to improve it, whatever the Whips may say. Otherwise, it is hard to justify the survival of your Lordships’ House. I would like to test the opinion of the House.
Protection of Freedoms Bill
Lord Lester of Herne Hill Excerpts(12 years, 4 months ago)
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Baroness Royall of Blaisdon
My Lords, Amendment 4 would seek to instate a more proportionate limit of six years for the retention of DNA and fingerprint data for those arrested and/or charged with a qualifying offence such as rape or serious assault. We return to the difficult balance to be struck between protecting people's freedom from police and government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists. As was mentioned in our debate in Committee, there is no more important series of cases involving DNA evidence than serious sexual crimes, rape and other offences against women, which cause huge anxiety, shame and sorrow for the victims. That fact is one of the major catalysts for the amendments before us.
The six-year limit proposed by my Government was based on Home Office analysis and reflected a proportionate response to the European Court of Human Rights ruling that the blanket retention of DNA violated Article 8 of the European Convention on Human Rights. In Committee I cited the 23,000 criminals a year who go on to commit further offences, and who will not be covered by the Government's proposed three-year retention limit. I was asked by the noble Lord, Lord Phillips of Sudbury, who is not in his place, whether that figure included minor offences. I confirm that it does, but also that each year 6,000 of those individuals will go on to commit serious crimes including rape and other sexual offences, murder and manslaughter. This analysis comes from the House of Commons Library and from Home Office research given to the Minister, Mr James Brokenshire, in July 2010. I think that the research was buried for some time.
As noble Lords will know, the three-year limit for the retention of DNA comes from the Scottish model, which was based on no real analysis of the risk to public security. The coalition Government made a commitment to the three-year limit based on no new evidence, simply a judgment that this was the appropriate balance between privacy and public safety. The Opposition fundamentally disagree with this judgment. When it comes to offences such as rape and serious assault, we believe that the balance should be in favour of protecting the public and that a more cautious, evidence-based limit should be set.
I was particularly struck by the speech in Committee of the noble Baroness, Lady O'Neill of Bengarve, about the reality of what is stored, and how it is stored, on the National DNA Database, because this reaches the heart of the issue about the invasion of privacy. She said:
“The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as ‘junk DNA’, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone's face”.—[Official Report, 29/11/11; col. 145.]
I recognise that how far the state should keep sensitive information on its citizens is a sensitive and highly important issue. However, I believe that the noble Baroness’s detailed explanation about the data on individuals and how those data are actually held removes many of the core concerns voiced about the retention of biometric information. If more citizens understood that they would be willing to cede this tiny amount of personal privacy in exchange for the arrest and conviction of murderers or rapists.
The Government have recognised that there will be situations when there is a clear need to retain an individual's DNA beyond the three-year limit. That is why new Section 63F, “Retention of section 63D material: persons arrested for or charged with a qualifying offence”, contains a provision for allowing police officers to apply for a two-year extension to the limit. However, we have serious concerns about transferring the burden of responsibility for these decisions to the police. It would seem that the Government are abdicating responsibility for the adverse consequences that may result from their decision to set a limit of three years.
We know that in practice such a safeguard does not work. In evidence given to the Public Bill Committee, ACPO stated that the Scottish system on which this is based has not led to a single application for an extension,
“because there are 6 million records on the national DNA database. We have always argued that it is impossible to create a regime of individual intervention for a database of 6 million … In effect, the Scottish model has to rely on a judgment being made against an individual profile when it reaches three years”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 9.]
More fundamentally, the thrust of these provisions is to pass the burden of responsibility for these decisions over to the police. The Government, as I said, are abdicating responsibility for the impact on public safety that may result from their decision to limit the retention period to three years, by suggesting that it is up to the police to decide whether the three-year limit or a five-year limit is more appropriate for each individual who is on the DNA database for a serious offence.
Passing that responsibility on to the police would be wrong on any occasion but it is wholly wrong to do so in these straitened times when intense burdens are placed on the police as a consequence of the cuts. The Government are taking a huge and very risky step in the Bill by reducing to three years the limit for which DNA and fingerprint data are retained for those arrested and/or charged with a qualifying offence such as rape or serious assault. Any such move should—indeed, must—be accompanied by robust evidence, but I do not believe that the evidence is there. I ask the Minister to think again.
Lord Lester of Herne Hill
My Lords, I wonder whether I might speak briefly as a member of the Joint Committee on Human Rights, because Members of the House will have the benefit of our report on the Bill, which is in the Printed Paper Office. In that report the committee—which is of course all-party, and beyond party—expressed the view that the scheme in the Bill is more proportionate and more likely than the previous regime under the Crime and Security Act 2010 to pass muster with the Marper judgment of the European Court of Human Rights.
I am not going to bore the House by referring in detail to what the report says, as it explains the issues very briefly and clearly. However, one matter that we expressed concern about, which I think is relevant, is that the committee said that it could not,
“reach a firm conclusion on the proportionality of these measures”,
without fuller information, including statistics on the operation of the National DNA Database, and asked the Government,
“to collect better records on the contribution made to the prevention and detection of crime by the retention and use of biometric material in the future”.
Paragraph 8 of the report states that,
“the measures in the Bill are likely to be a significant improvement on the measures in the Crime and Security Act 2010”.
As for the three-year versus the six-year period, with a renewal of two years, the committee commended and welcomed that as a,
“decision that a narrower approach to retention is appropriate”—
and so on.
The noble Baroness makes the point that Parliament should set a six-year term rather than having a three-year term renewed on application under the Bill. It seems no more rational or sensible to adopt a six-year period than to have a discretionary ability to increase for a further two years for a cause, as experience shows, but it is a matter of judgment about the better approach that one adopts. I say simply that the Government have the support of the committee itself in its report.
Lord Hughes of Woodside
My Lords, I support my noble friend Lady Royall. I do so even though I am not entirely in agreement with her, simply because in my view six years is too short. I think that we should go further. This is not the time or the place to argue the whole case, but I want to place on record my total opposition to those who say, on libertarian grounds, that we should not keep DNA because it affects people’s privacy. I think of the people over the years who have been caught because DNA has been kept for 10, 15 or 20 years, sometimes not for a specific offence but because it was standard practice to take a DNA profile. I regret very much that we are going to the extent of saying that we should keep DNA only for three years, with all the qualifications that there are around that.
Technology has improved over the years, not least in the storage of DNA samples. We have seen a case recently, which is probably sub judice because it is now in appeal, where a tiny fleck of blood was found on someone’s shirt but that was enough to lead to a conviction. As I say, one defendant is appealing so I shall say no more on that.
With that one reservation, I give my noble friend my full support on this. If it comes to a vote then I shall certainly vote with her, but I think that even six years is too short. We are going far too far on the basis that people’s privacy is more important than the conviction of someone for a serious offence.
Lord Campbell-Savours
My Lords, I do not want to detain the House longer than a few moments. I reiterate what I said in my brief intervention when we last discussed this matter. I simply cannot understand how we could allow the complete disconnect on this issue between the Government and what people think outside the House. When I talk to my colleagues and friends outside politics about this issue, there is universal support for our position. I know one person who is in favour of the Government’s position. Many of my friends who are Conservative supporters just do not believe that the Government are taking this action. I cannot understand how we allow ourselves to slip into a position where this disconnect can develop. Even during the course of this debate, why are Government-supporting Peers, who know what their own supporters are saying on this issue, not objecting more or even privately making representations to the Government on the need to avoid going down this route? What happens when cases begin to surface, as inevitably they will, of people who have committed crimes who could have been picked up in the event that their DNA had been retained?
The Joint Committee on Human rights has obviously expressed a reservation, which I perfectly understand. Effectively it is saying, as my noble friend did, “Where is the evidence?”. I do not believe that there is any evidence that is worthy of this kind of debate. The Government are making a major mistake in proceeding on this basis and, as I say, they are aggravating the disconnect between the people and Parliament.
Lord Lester of Herne Hill
Before the noble Lord sits down, he wants evidence, but would he agree with me that what the public may or may not think on the matter is not evidence—it is evidence only of public opinion? We should be careful in deciding questions of rights and freedoms in adopting what might be called a populist approach.
Lord Campbell-Savours
The public’s perception of freedom in this debate is that they will be free of crime, or at least freer, in the event that more DNA was to be retained. That is the general attitude of the public as I understand it. They want freedom, but they believe that freedom comes with the retention of DNA.
Baroness Royall of Blaisdon
My Lords, I am grateful to all noble Lords who have participated in this brief debate and for the information provided by the Minister. I say to the noble Lord, Lord Lester, that I have huge respect for the work of the Joint Committee on Human Rights but, on this occasion, I do not agree with its conclusions wholeheartedly. I noticed that other noble Lords have noted, as the noble Lord said himself, that the Committee was asking for better recording in future and for more evidence, in effect. It has become apparent during the debate that the coalition Government are now moving towards three years but are saying that, although they want three years, in some cases five years is more appropriate. They are, as many noble Lords would agree, putting that burden on the police.
In my earlier speech, I mentioned that ACPO had said that not one single application for an extension had been made in Scotland. That is very relevant to our deliberations this evening. I completely agree with all noble Lords who have spoken that this is a matter of balance and of which side of the line one comes down on. On these Benches, I think everyone comes down on the side of wishing to preserve people’s freedom to live, protected from crime, rather than having more protection for people’s privacy. We believe that the citizens of this country would prefer that. We are worried that in future—
Lord Lester of Herne Hill
Does the noble Baroness accept that this is not a “rather than” situation? She keeps using the phrase “rather than”. Of course we all want to protect ourselves against disorder and crime, but it is not a question of “rather than” but of balance. The Joint Committee on Human Rights has been looking at Marper and at the evidence and as an all-party and beyond-party committee it came to the conclusion that the balance was correct. Does the noble Baroness accept that it is a question of balance?
Baroness Royall of Blaisdon
I accept that it is a question of balance, as I have said on numerous occasions. However, I believe that it is also a question of “rather than”. We believe that, rather than people's privacy being the be-all and end-all in this argument, it is more important to retain DNA for a longer period. I see people nodding against me, if you see what I mean. I do not expect all noble Lords to agree with me but on this question of balance we come down on the protection of individuals rather than on the privacy of individuals. That is where we are.
I do not intend to move to a vote but I would be grateful if the noble Lord could come back to me with some more information which I may wish to pursue at Third Reading in relation to the three years and the five years. If this is a key plank within the arguments put forward by the Minister, as I believe it to be, it is very relevant that in Scotland it has not been used on a single occasion. I would like to know why the police in Scotland have not felt able to use this or have not felt it necessary to use it. I would be grateful if the Minister could bring back further information before Third Reading.
Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
Lord Lester of Herne Hill Excerpts(12 years, 5 months ago)
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That amendment was made by the Equality Act 2010, but it was made to Section 6A of the Civil Partnership Act 2004. If you go along to the Printed Paper Office and ask for a copy of the 2004 Act, you will discover that it contains no Section 6A. That is because Section 6A was put into the Act by a regulation in 2005. That regulation was made under a provision in the Civil Partnership Act allowing statutory amendments to be made in respect of the Acts that were passed before the end of the Session in which the 2004 Act was passed. Therefore, any enactment contained in an Act passed before the end of 2004 can be amended by statutory regulation, using the affirmative procedure.
The point that arises in this case is a short one and I am not going to go into the opinions of the QCs. Noble Lords have had the great advantage of hearing another QC giving an opposite opinion—and it is not infrequent that that happens. I am going to give no opinion at all about the correctness or otherwise of the provision. They are practising QCs. They have signed their opinions, they are genuinely held and they illustrate a doubt—that is all—about the effect of the Equality Act on these regulations.
My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying “nothing in this Act shall”, the provision would say “nothing in this or any other Act shall”. The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act.
Lord Lester of Herne Hill
Leaving aside altogether the argument about the declaratory provision, does the noble and learned Lord accept the opinion given, for example, by the Church of England's lawyers, with which I fully agree, that in any event, under the Equality Act, there could not conceivably be unlawful discrimination in the provision of goods, services and facilities, nor could there be a breach of a public sector duty because no public function is exercised by religious organisations? Therefore, quite apart from the belt-and-braces declaratory provision, there would be no conceivable case of unlawful discrimination.
The Lord Bishop of Blackburn
My Lords, of course I share the concerns expressed by others about how these regulations might affect other churches. However, like my brother the right reverend Prelate the Bishop of Oxford, I should like to say how I think these regulations might affect the Church of England, although I shall perhaps be looking through a slightly different part of the lens.
At the moment, the Church of England, through the General Synod, has not expressed any desire at all for its churches to be used for registering civil partnerships. Therefore, it might be thought that I should be very content to rely simply on the provisions of the regulations that would require the consent of the General Synod to be given before any Church of England church could be approved for registering civil partnerships. However, it seems that this provision is not without difficulty. As your Lordships will know, we have special procedures in General Synod for matters that affect the doctrine or liturgy of the church. It could be thought by some that allowing churches to be used for civil partnerships would affect the doctrine or worship of the church. If so, those special procedures would come into play.
The provision in the schedule to the regulations talks simply about requiring the consent in writing of the General Synod without defining how that consent is to be obtained. If at some future date the proper consent of General Synod were obtained, there could still be difficulties for individual clergy. There are, as we have heard, a variety of legal opinions about whether a claim for discrimination against a priest who refused to allow his or her church to be used for registering a civil partnership would succeed. However, at the end of the day, clergy should not be put at risk of having to defend such claims, even if they seem unlikely and their prospect of success seems remote.
It seems clear, however, that an incumbent who refused to allow his or her church to be approved for civil partnerships would gain no protection from Regulation 2B, because the obligation not to discriminate comes not from the regulations but from the Equality Act. Regulation 2B would appear to be nothing more than window-dressing, and it shows how unsatisfactory these regulations are. There may be good intent but the promised conscience clause simply is not there. It cannot be there in regulations; either the Equality Act or the Civil Partnership Act needs to be amended to provide the necessary clause. I would want to see an express statutory conscience clause similar to that contained in Section 8 of the Matrimonial Causes Act 1965, which provides that no priest of the Church of England or the Church in Wales can be compelled to allow their church or chapel to be used for the solemnisation of a marriage of a divorced person whose former spouse is still living.
As the General Synod has not expressed any desire for Church of England churches and chapels to be approved for registering civil partnerships, there is surely no need for the Church of England to be included in these regulations at all. Indeed, it should be expressly excluded from them; otherwise, might it look as though Parliament is breaking what I understand to be the convention that it legislates for the Church of England only when the church has asked it to? If at some future date General Synod decided—
Lord Lester of Herne Hill
Can I take it from his speech that the right reverend Prelate disagrees with the legal advice given to the Church of England by its legal advisers?
The Lord Bishop of Blackburn
I think that the legal advice given to the Church of England in some areas may be open to question. Let us be honest: we have received various pieces of advice—noble Lords here have said that they have heard from many, many people, including lawyers.
If at some future date General Synod does decide that it wishes to allow its churches to be used for registering civil partnerships, then there is a simple procedure: we pass a Measure and we bring that Measure to Parliament using the established statutory procedure under the enabling Act of 1919 for Measures of the Church of England. Such a Measure could amend existing statutes and regulations as necessary to achieve the desired result, including the essential conscience clause of which I have spoken.
Lord Lester of Herne Hill
I shall briefly say a few extra things. I am very conscious of time, and I am tempted to do what a former judge of the High Court used to do. He was famous for saying only “I agree”, and that was his judgment. I promise that I am going to make only a few extra points.
The first extra point that I must make is about the Merits Committee and the Joint Committee on Human Rights. The Joint Committee on Human Rights, on which I serve, is meant to scrutinise mainly primary legislation, not delegated legislation. We have an arrangement with the Merits Committee that if it spots a human rights issue that it thinks should be dealt with by the Joint Committee, it should be alerted to that so that it can consider it. Unfortunately, for whatever reason, that broke down in this case. I am going to ask the Joint Committee on Human Rights to ask the Lord Chancellor, when it sees him next week, whether government departments can take more responsibility and, where they spot issues of human rights in delegated legislation, to help the committee by identifying them. That means that noble Lords do not have the benefit of an opinion from the Joint Committee on Human Rights about compatibility with Article 9 and Article 14 of the convention.
Speaking for myself, I agree with my noble friend Lord Pannick that there is not the faintest chance of any violation of Article 9 or Article 14 by virtue of the Equality Act read with these regulations. On the contrary, I believe that the right view is that these regulations promote religious freedom and do so without discrimination.
Quite apart from the arguments that the noble and learned Lord, Lord Falconer of Thoroton, has fully deployed, with which I wholly agree, the point raised by my noble friend Lady Williams of Crosby was about the discrimination provisions of the Equality Act and whether, leaving aside the declaratory provision, there could conceivably be a discrimination case. In my view, the answer to that is totally correct. During the passage of the Equality Bill, I had responsibility for over a year for dealing with these issues from the Liberal Democrat Front Bench. My view is the same as that of the Church of England legal advisers, which is the further matter that I would like your Lordships to consider.
In the opinion that the Church of England was given, this was dealt with very shortly and very clearly in this way. It said:
“The question has been raised in Parliament and elsewhere of whether a religious denomination, or a local church, which declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way which is unlawful under the Equality Act 2010. The clear view of the Legal Office is that it could not. This is also the declared view of the Government’s lawyers. The clear view of the Legal Office is that it could not. This is also the declared view of the Government's lawyers. A key relevant provision is section 29 of the Equality Act which makes it unlawful for ‘a person (a “service-provider”) concerned with the provision of a service to the public or a section of the public’ to discriminate on various grounds, including sexual orientation, ‘against a person requiring the service by not providing the person with the service’. A Church which provides couples with the opportunity to marry (but not to register civil partnerships) is ‘concerned with’ the provision of marriage only; it is simply not ‘concerned with’ the provision of facilities to register civil partnerships. That would be a different ‘service’, marriage and civil partnership being legally distinct concepts. If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory. But that is a separate issue which would have to be addressed in the course of that new legislation”.
Then, for good measure, the opinion deals with the public sector duty:
“The non-discrimination requirement imposed by the Equality Act on service-providers does not include a requirement to undertake the provision of other services that a service-provider is not already concerned with providing just because the services that it currently offers are of such a nature that they tend to benefit only persons of a particular age, sex, sexual orientation etc. Thus, for, example, a gentlemen's outfitter is not required to supply women's clothes. A children's book shop is not required to stock books that are intended for adults. And a Church that provides a facility to marry is not required to provide a facility to same-sex couples for registering civil partnerships. The “public sector equality duty” (contained in section 149 of the Equality Act) also has no implications for a Church’s decision whether to make its premises available for the registration of civil partnerships. A Church is not exercising public functions in making such a decision so the duty is not applicable. The public sector equality duty will not prejudice denominations who conduct marriages (and whose buildings, unlike those of the Church of England, need to be registered for that purpose) but who do not wish to host civil partnerships. The registration of buildings for marriages is a purely administrative act by the registration authorities and does not involve them exercising a discretion or taking a decision. The public sector duty is therefore immaterial to the registration process. The Equality Act contains various exceptions for religious organisations (see Schedule 23). But given what is said above, it is not considered that a Church which solemnized marriages but did not wish to provide facilities for the registration of civil partnerships would need to rely on any of these since it would not be doing anything that even prima facie amounted to unlawful discrimination”.
Lord Elton
The noble Lord is kind to give way. I just want to observe that, like many before him and no doubt several after, he is proceeding to tell us what the result of a case would be. Does he not agree that the function of Parliament is to try to see that the law is so clear that no case would be brought? That is what my noble and learned friend’s proposal would provide.
Lord Lester of Herne Hill
I agree. I am seeking, using the Church of England opinion as a short way of doing so, to refer to the actual provisions in the Act to show that they are quite clear and have no application to anything that could give rise to a possible legal challenge.
Lord Alton of Liverpool
I am grateful to the noble and learned Lord. I want to revert to the point that the noble Lord, Lord Elton, just made. The phrase “for the avoidance of doubt” has been thrown around a lot during the course of the proceedings today. It seems there is a lot of common ground in your Lordships’ House on trying to find a sensible way forward. The noble and learned Lord, Lord Mackay of Clashfern, suggested earlier that, if vexatious litigation were to be brought forward in the future, then an amendment to the Equality Act should be brought to your Lordships’ House and enacted. Would the noble and learned Lord commit himself to supporting such an approach if vexatious litigation were to emerge as a result of the decision today, unlikely—I agree with him—though that is?
Lord Lester of Herne Hill
I should say that I am not a learned Lord. Whether I am a noble Lord is another matter.
Lord Lester of Herne Hill
If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.
There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.
In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.
Lord Mackay of Clashfern
The noble Lord mentioned the case coming to the Supreme Court. That would cost the church a penny or two.
Lord Lester of Herne Hill
No respectable member of the Bar, properly informed and reading the statute as a whole, if asked whether there was a reasonable chance of success, would be likely to say that there were. Anyone who brought such a challenge would have to find public funds or their own funds to do so and they would fail at first instance, in the Court of Appeal and in the Supreme Court.
Lord Henley
My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament’s intention that that is the position. I do not think I can be any clearer than that.
Equality Act 2010 (Specific Duties) Regulations 2011
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The Earl of Listowel
I am grateful to the noble Lord, Lord Waddington, for tabling this amendment and for the work he has done in this area for many years now. I join him in expressing deep concern about what has happened to those five Catholic adoption agencies. The previous Government and this Government are well aware that voluntary adoption agencies have the best outcomes for children. They provide the best stability and the longer term support for those children and their families to see that those children do well. It is a matter of very great regret that those five agencies have closed. Will the Minister assure me that the guidance makes clear that the principles in the Children Act 1989 and the Children Act 2004 are paramount, that the interests of the child are paramount and that where it is considered that it is in the best interests of children not to be placed with same-sex couples, agencies can do so? I believe it is a perfectly tenable position. I have worked in this House on child welfare for 12 years now and, in my view, it is not generally in the child’s best interests to be placed in that situation. I may be wrong in that view, but there are many professionals who share it. It is not proven that it is safe or in the best interests of children to place them in such settings. I think Professor Golombok—I hope I have her name correctly—has done the most work in this area, but she looks only to the age of 18 and the sample of families examined is quite small. I should be most grateful to the Minister if she could assure me that the guidance will be clear about the paramountcy of the welfare of children, about agencies’ ability to decide where that interest lies and that we will not be seeing a repeat of what happened with those five Catholic adoption agencies.
Lord Lester of Herne Hill
My Lords, I should declare a couple of interests before I say anything. First, I was the architect of a Private Member's Bill on equality that went through this House and became a kind of model for what came later. Secondly, I am counsel to the National Secular Society in the intervention in the pending Strasbourg proceedings and, therefore, will not say anything about the cases that have been placed before the European Court of Human Rights. Thirdly, I am so old that I can remember listening for the past 40 years to the arguments I heard just now basically attacking equality legislation root and branch and suggesting it should be consigned to the dustbin.
The most useful way in which I can assist the House is to begin by explaining a bit more about the framework within which this debate takes place as that might throw some light on what we are talking about. The previous Government, with all-party support—I commend the noble Baroness, Lady Royall, in particular for having led the Government at the time on this issue in this House—were responsible for introducing Section 149 of the Equality Act, which is the public sector equality duty. That duty was already in our law in relation to gender, ethnicity and disability, but it was strengthened in important respects by the previous Government with support from all three main parties right across the House. The duty requires every public authority in the exercise of its functions to have due regard to three things: first, to eliminate discrimination, harassment, victimisation and other conduct which is prohibited; secondly, to advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and, thirdly, to foster good relations between people who share a relevant protected characteristic and others.
The duty covers various grounds, including religion or belief. I assume that even the staunchest opponents of the legislation are pleased that discrimination on grounds of religion and belief is covered. I say with all respect that it has nothing to do with positive discrimination, which is dealt with in a limited form by a completely different provision. It imposes a general public sector duty. There are particular problems about the way in which the duty treats religion and belief in the same way as the other protected characteristics. Some would argue, and I would be one of them, that religion is too strongly protected in the legislation, but we really need not go into that today.
The Explanatory Notes on the Equality Act make it clear that a whole range of religions, including Catholicism, Protestantism, Liberal Judaism, Orthodox Judaism and various forms of Islam, are to be looked at individually and separately if there is an allegation of discrimination. That is the framework. The power being exercised under the regulations is to give better governance in complying with that general duty. Complaints about the Act itself were settled by the previous Parliament when it enacted the legislation.
Where I part company with the noble Lord, Lord Low, with whom I hate ever to disagree, is in believing that his amendment—I have already had the advantage of speaking to him about it—is a real example of overregulation of the worst kind. The best way in which I can illustrate that is by giving just one example, that of religion. Under the general duty, every public authority has to have due regard to the three things that I mentioned. The first thing that an authority has to do under the law is to identify within its area various religious, irreligious, non-religious and atheistic groups. Then it has to decide whether something needs to be done in order to tackle inequality, discrimination and so on with regard to those groups. The regulations strip down the core needs to ensure compliance with the general duty in a well targeted and sensible way. They state that each public authority must publish information to demonstrate its compliance with the Section 149 duty, which is quite right and entirely sensible. They further state that the information has to include information relating to persons who share a relevant protected characteristic, which they define—perfectly sensible. The third thing that the authority must do is prepare and publish one or more objectives that it thinks will achieve the things that I have already mentioned. Again, that is perfectly sensible. Then they say that the objective must be “specific and measurable” —again entirely sensible.
The amendment of the noble Lord, Lord Low, would add that each public authority in the country must,
“publish information on equality analyses they have undertaken … set objectives designed to facilitate compliance with the General Equality Duty … publish information about the engagement they have had with affected groups when developing these objectives and … report annually on progress towards meeting these objectives”.
I do not wish to be unmannerly in saying that it reads a bit Soviet—
Viscount Eccles
I should be most grateful if my noble friend would tell the House exactly what the general duty is and how it differs from the duty in Section 149.
Lord Lester of Herne Hill
The general duty is in Section 149 and I have already said what it covers. I obviously did not do it very well, but that is where the general duty is. I was trying to explain that these extra obligations, on every public authority, really are an example, in my view, of overregulation. The noble Lord, Lord Waddington—who does not like the legislation, and has always made that absolutely clear, with the reasons given again and again in previous debates—rightly says that he is against overregulation. He referred to the Red Tape Challenge. The Minister will correct me if I am wrong but my understanding is that the Red Tape Challenge, which asked the public what they thought about the regulation under the Equality Act, disclosed that about 95 per cent of respondents expressed overwhelming support for the scheme that he dislikes so much, and the remaining 5 per cent included some who wanted it to go further. If one takes any regard of public consultation, that is a vote of confidence in the scheme, however much the noble Lord, Lord Waddington, and those around him may dislike it. One is entitled to take account of that since the Government did so. I am totally opposed to overregulation, and I want just to give one example of what worries me when a body such as the Equality and Human Rights Commission has responsibility for monitoring.
In my professional capacity I was consulted by the Commission for Racial Equality about a scheme involving Crossrail. The question was whether digging a large hole in the ground in a particular part of London would be directly or indirectly racially discriminatory against people of Bangladeshi origin, and therefore whether the whole scheme might have to be stopped as a result. It seemed to me, if I may say so, a strange thing to ask me to advise on, but that is what happens in life. I then called for the race equality impact assessments that would have been made and were relevant to this under the previous legislation. I discovered that there were 100 pages from the Department of Transport, separate submissions by each of the three London boroughs affected, a separate submission by the Mayor of London and a separate one from Transport for London. One had this bulky mountain of paper, none of which had ever been read by the monitoring agency, in a cupboard that no one had ever opened. That seemed to me to be an example of creating paper mountains through overregulation of a completely pointless kind.
When I was constructing my own Private Member’s Bill it was impressed on me by people from Northern Ireland who had great experience in monitoring that one must go for targeted monitoring by a body that is capable of doing the job. I do not think that the Equality and Human Rights Commission at the moment is capable of doing the job. It requires a great deal of professional expertise which is lacking and is very difficult to do. I therefore welcome the fact that the Government have sensibly produced specific duties that are capable of being carried out and have said that we will treat it as an experiment for two years, at the end of which we will suck it and see whether we need more or less regulation. That seems entirely desirable. Therefore, I could not possibly support the noble Lord, Lord Low, if he were to divide the House, which I hope he will not.
As for the amendment proposed by the noble Lord, Lord Waddington, when the Equality Bill was going through Parliament, as the Explanatory Notes make clear, the right to freedom of religion was specifically taken into account, as was freedom of conscience. My view is that there is nothing whatever in that Act, or in the way it has been interpreted by the courts or, in my judgment, in Strasbourg, that infringes on freedom of religion or freedom of conscience. I do not refer to the way in which it has been interpreted by the Daily Mail or in stupid reactions by ignorant people, or others. There are cases pending in Strasbourg.
Lord Waddington
Is the noble Lord concerned for one moment with the way in which it has been interpreted by public authorities? That is the point.
Lord Lester of Herne Hill
I am deeply concerned about that. As the noble Lord, Lord Low, said, I am deeply concerned about ridiculous political correctness, with the rubbish about how you must not mention Christmas or Christmas lights, and so on. The same is true of the Human Rights Act; day after day, you read ridiculous examples that do not represent the law of the land. All that I am talking about is the law of the land, not misinterpretations of the law of the land; there is nothing wrong with the law of the land as it stands, but there is everything wrong with mischievous misinterpretations outside or sheer ignorance. But we are not here to pass judgment on the basis of ignorance or anything of that kind; we are here to approve some sensible regulations, narrowly and clearly targeted to carry out the general duty, which was passed by the previous Government with the support of all parties. Therefore, I hope that we can do so soon.
Lord Tebbit
My Lords, I apologise to my noble friend the Minister for not asking her this question before she sat down in order that her officials would have time to prepare the answer. What is the cost of all this, not just in some gross sum of money but in terms of how many care assistants employed by local authorities will have to be made redundant to finance it? I have a feeling that there would be a greater contribution to human happiness and to the benefit of disabled and elderly people, who are protected categories, were the care assistants to be kept in work and these regulations to be junked. No doubt the figures will be provided before the end of this debate, with the customary efficiency of our Civil Service.
I remember when the Equality Bill was brought before this House at Second Reading and the spokesman for my party—we were then in opposition—started her speech with the words, “We on these Benches support this Bill”, and was greeted with something of a pantomime chorus behind her, crying, “Oh no we don’t!”.
Let me make it very clear that I do not like this Act. Of course, there are elements of it that are very helpful, not least the consolidation of much of the previous legislation concerning disability. It brings it all together, and that is very helpful. So I would not just repeal it like that—I would want to keep some parts of it. Unfortunately, primary legislation that is itself misconceived spawns very bad and misconceived secondary legislation. That is what we are now facing.
The whole of this is misconceived, in my opinion, because of its confusion of equality and sameness, and its frequent confusion between rights and entitlements—one day, I hope we might have a debate in this House entirely on the matter of the distinction which should be drawn between rights and entitlements—and that of course is leaving out its failure to understand that on many occasions, and in many ways, effective and efficient administration, which is in the interest of all of us, even the protected categories in this Act, should have priority over the duties set out in Section 149(1) of the Act.
However, we look at the Act now as it is. My noble friend Lord Waddington gave some of the examples of the way in which the Act has spawned action by Government and local government which is profoundly harmful, not least, as has been referred to, in the matter of adoption societies, and the discrimination against some religions. Not all religions, of course: it would be a bold local authority that would discriminate against, let us say, the Islamic religion. That would be a step too far; but of course Christians are easy meat, as we see day by day.
Lord Lester of Herne Hill
Is the noble Lord, Lord Tebbit, aware that it would be unlawful to discriminate against any particular religion under the Act that he slights?
Lord Tebbit
Yes indeed, but I hope that the noble Lord, Lord Lester, does not deny the truth of what my noble friend Lord Waddington said, and the way in which he described the discrimination which is brought against people who believe in a particular religion, that is, the Christian religion. No doubt the noble Lord, Lord Lester, would probably want to have a group of original Mormons on a committee in a local authority which was considering matters of divorce, or marriage, or something of that sort. The point is that once we start trying to get down into these details, instead of relying upon the decent conduct of decent people, elected to office democratically in local authorities and responsible to their electorates, we find ourselves in a morass; indeed, not merely a morass, but an expensive and a contradictory morass. I think that we need to look at all this again, preferably with a basic reform of the Act. I know that that is not on offer right now. However, as my noble friend Lord Waddington was saying, the Act does not require that these regulations be placed before us, and it does not require that they should be passed. I think that it would be a very great benefit to mankind in general if they were not and, in particular, I think it would be of a very great benefit if the amendment of my noble friend Lord Waddington were to be accepted this evening as a warning shot across the bows of this Government. In the words of the noble Lord, Lord Lester, it does not seem that this Government are much better than their predecessor.
Baroness Royall of Blaisdon
No, my Lords. It defines certain disadvantages, but it does not mean to say that some people are more equal than others. We are not in an Animal Farm situation. We are saying that every individual has their intrinsic worth as a human being, and that they should be treated in an equal manner and given equality of opportunity. That is what I believe we are all—or most of us—agreed upon in this Chamber.
Lord Lester of Herne Hill
My Lords, the word “protected” simply means those protected against discrimination in those categories. However, it seems to me that the noble Baroness was giving a very narrow interpretation, which may be why she agrees with the noble Lord, Lord Low. May I try to say what I think the regulations mean? Regulation 3 says that each public authority,
“must prepare and publish one or more objectives it thinks it should achieve to do any of the things mentioned in paragraphs (a) to (c)”,
but that does not mean, in my judgment—no doubt the Minister will want to respond to this—that if they publish only one objective, that is sufficient.
Earl Ferrers
With the greatest respect, the noble Lord is doing more than making an intervention; he is making another speech.
Lord Lester of Herne Hill
I do not think I know the difference, since I am asking a question. The question that I am asking, if I may be permitted to do so, is whether the Minister—
Lord Lester of Herne Hill
I am so sorry. I meant to ask whether the noble Baroness, looking at the wording, accepts that there would be a judicial review, or something worse, if one were simply to do what she suggests.
Baroness Royall of Blaisdon
My Lords, these are questions for the Minister. I am just putting my views as the spokesperson for the Opposition. I go back to what I was going to say, about transparency. The Government rightly stress the need for transparency and accountability. However, it is difficult to understand how these can be enhanced when the public and public sector employees will not be able to compare the equality performance of similar bodies because the information will not always relate to the same issues or be measured in a standard way. Access to data is crucial, but it is difficult to interpret those data if they are not given in a standard way. Therefore, it will be more difficult for public authorities and those they serve to discover and understand what good practice is. There is a possibility that there will be a new postcode lottery. The Government have failed to provide clarity with these regulations. It could well be that the burden on public bodies will increase in some way. As the Council for Disabled Children says in its excellent briefing,
“the requirements should be clear to all public bodies who are required to comply with the specific duties. This purpose is better served by making these requirements explicit in the Regulations rather than leaving public bodies open to challenge because ‘implicit’ requirements have not been made clear to them”.
I have to say that I fundamentally disagree with the amendment tabled by the noble Lord, Lord Waddington, in relation both to freedom of religion and conscience and to burdens and bureaucracy. I must also disagree with the noble Lord, Lord Campbell of Alloway, who is in many ways my noble friend. During the passage of the Equality Bill we debated these issues long and hard and they were subject, as he rightly said, to amendments. The noble Lord, Lord Waddington, was wrong when he made the arguments at that time and he is wrong now. I am grateful to the noble Lord, Lord Lester, for pointing out the difference between the law of the land, which I believe is correct, and mischievous misinterpretations of that law, of which there are undoubtedly many. While I respect that around this Chamber we have different views, I am concerned that perhaps some of the voices opposite are those of the modern Conservative Party. I know that some on my Benches will disagree with me on that.
When we debated the Equality Bill, there was wide agreement on all Benches that the Bill—now the Act—was the right way to address discrimination and advance equality of opportunity in our tolerant British society. I believe that that is still the case. The noble Lord, Lord Waddington, says that specific regulations would be a burden on the public sector. However, I remind him that good regulations serve an important purpose. In this case it is to ensure that systematic inequalities can be challenged so that all members of our society can live and flourish without discrimination. The noble Lord dismisses the importance of equality of outcomes, whereas I suggest that outcomes and opportunity are equally important.
The noble Lord, Lord Low, is right to stress the need for the general equality duty to produce tangible and positive outcomes. I fear that the regulations have been weakened to such an extent that the outcomes will be neither tangible nor positive. In the other place, the Minister made a commitment to review the duties in two years’ time. That is very welcome, but I ask the Minister to confirm that such a review will take place and to provide further information about a timetable for it. How will the evidence be gathered? Will the review be based on progress towards the aims set out in the general duty, rather than simply on the aspects covered by the specific duties, and will it be public? I also ask the noble Baroness for a clear commitment that the specific duties will be amended if the review reveals that public bodies have not made sufficient progress in eliminating discrimination and advancing equality of opportunity.
The equality duty should be one of the most effective ways of combating institutional discrimination and putting the public sector at the forefront of efforts to secure equality. Contrary to what the noble Lord, Lord Waddington, said, in this seemingly fractured society I believe that issues relating to equality and discrimination have assumed greater importance and that regulations to define the specific duties are vital to delivering the general equality duty. As I said earlier, I would be very happy to support the noble Lord, Lord Low, should he wish to vote on his amendment.
Freedoms and Civil Liberties
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Baroness Neville-Jones
I think we are straying from the Question. I think everyone would accept that we have an extremely tight financial situation. It is not possible to continue with all departmental budgets at their previous levels, which were not funded, in any case, by the previous Government. It is for the police to decide where the operational effect will take place. We are, however, absolutely committed to effective policing.
Lord Lester of Herne Hill
My Lords, reverting to my noble friend Lord Waddington’s Question, does the Minister agree that the judgments of the European Court of Human Rights, under the convention, strike a perfectly fair balance in deciding, as the court did last week, that gay couples are entitled to the full protection of family life respect? The decision of our own Supreme Court in the United Kingdom yesterday was that gay asylum seekers also need protection on the grounds of their sexuality. Does the Minister agree, therefore, that if we want to protect civil rights and civil liberties, the best protection of the minimum standards lies in the European convention, the Human Rights Act and the devolution statutes?
Baroness Neville-Jones
My Lords, the noble Lord refers to yesterday’s ruling from the Supreme Court. I think that vindicates the position of the coalition Government. We do not intend to remove people from this country and send them home expecting them to hide their sexuality to avoid persecution. We will certainly be looking to protect people’s rights in that respect. I entirely accept that the European convention is part of the framework of human rights in this country, but it is also interpreted by British legislation.
Terrorism Act 2000
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Baroness Neville-Jones
My Lords, I am sure that the whole House endorses that. I think that 7/7 was an example of the extraordinary importance of the community coming together. A noble Lord said earlier that there had been a considerable reduction in the use of Section 44 powers initiated and undertaken by the police. I think that that is in recognition of exactly the point that the noble Lord made; that is, it is important to be seen to be using the powers fairly and proportionately, and it creates resentment if those two characteristics are not present.
Lord Lester of Herne Hill
My Lords, I was not going to say anything, until I heard the noble Lord, Lord Howarth, speak. Like my noble friend Lord Goodhart, I speak, I suppose, for the Liberal Democrat side of the coalition. Is the Minister aware that those of us in that part of the coalition greatly value the way in which the new Home Secretary and the Minister in this House respond to difficult judgments such as that of the European Court of Human Rights? The contrast, I am sorry to say, with former Home Secretaries and others from the opposition party when they were in power is very real. Again and again, I heard Labour Home Secretaries denounce either the courts of this country or the European Court of Human Rights when they lost cases. I am sure that the Minister is aware of that. What is so remarkable about the new Administration is that, although these cases involve difficult balances between national security and personal freedom, the new Home Secretary has not cavilled or quarrelled with the judgments but has accepted them as part of the rule of law. Does the Minister agree with me that it is the function of the judiciary, in partnership with the Executive and Parliament, to interpret and apply the law, and that the suggestion that our Supreme Court or the European Court of Human Rights are somehow less in touch with reality than Ministers is a heresy which I had hoped would no longer be expressed by the party opposite?
Baroness Neville-Jones
I shall pass on to my right honourable friend the Home Secretary the compliments of the noble Lord. I think that we would all agree that this constitution functions well when its three parts, the Executive, the courts and Parliament, see eye to eye.
Linda Carty
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Baroness Neville-Jones
My Lords, my noble friend is right to say that part of the problem in this case was that we were not notified by the Texas authorities, as should have been the case. That is one reason why our ability to help Miss Carty has come rather late in the day. As for the approach to the International Court of Justice, I am aware of that precedent. Our current advice is that it is not necessarily particularly helpful, but I certainly do not rule out pursuing that route if we have grounds to believe that it will help.
Lord Lester of Herne Hill
Is the Minister also aware that President George W Bush tried to give effect to the Mexican and German cases, where the ICJ gave the rulings, but was unable to do so because of the recalcitrance of the state authorities? Does that not illustrate the great problem that this Government now have in deciding on the methodology?